Southern Ry. Co. v. Morgan

• Citation: 178 Ala. 590,59 So. 432
• Parties: SOUTHERN RY. CO. v. MORGAN.
• Decision Date: 13 June 1912
• Court: Supreme Court of Alabama

59 So. 432

178 Ala. 590

SOUTHERN RY. CO. v. MORGAN.

Supreme Court of Alabama

June 13, 1912

Rehearing Denied June 29, 1912.

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by W. C. Morgan against the Southern Railway Company for damages sustained while a passenger. Judgment for plaintiff and defendant appeals. Affirmed.

Simpson Mayfield, and Sayre, JJ., dissenting in part.

For the facts in this case, see former appeal, 54 So. 626, together with the statement made in the opinion. The following charges were refused the defendant:

(A) "As a matter of law, it is negligence to alight from a moving train at right angles to the direction in which the train is moving."

(B) "If the jury believe from the evidence that the plaintiff, Morgan, stepped off the car after it began to move, or while it was moving, without any other necessity therefor than his desire to alight at that point, and his injury was caused by his so stepping off the car, which could have been avoided by his remaining on the car, then he is guilty of negligence which would defeat a recovery in this case."

(D) "If the jury believe from the evidence that the plaintiff, Morgan, voluntarily stepped off the car while it was in motion, he therefore assumed all risk of alighting safely, and he cannot recover."

(E) "I charge you that, as a matter of common knowledge jerks and jars ordinarily attend the handling and running of trains; and one who becomes a passenger on a train does so with this knowledge, and assumes the risk of the ordinary jars and jerks of the train. And if, in this case, the injury to Mr. Morgan was the result of such jerk or jar, then he cannot recover."

(F) "If the jury believe from the evidence that the plaintiff was standing on the steps of the car while it was in motion, when there was room for him to stand on the platform or within the door of the car, and that he was thrown from the steps to the ground by the mere neglect of the trainmen, and that he would not have been thrown to the ground by such neglect of the trainmen if he had been standing on the platform or within the car, then they must find their verdict for the defendant."

(G) "If the jury believe from the evidence that the plaintiff had not been to Limrock in 10 years or more, that he had entered the sixty-sixth year, that he had recently been ill and was weak, that he carried his suit case in his right hand, that it was dark, that he had just come out of a lighted car, that under these conditions he stepped from the train, which was moving so rapidly as to cause him to fall heavily to the ground, then he cannot recover in this case."

(H) "As a matter of law, it is negligence to alight from a moving train at right angles to the direction in which the train is moving, where the party attempting to alight is an old man, not accustomed to getting on or off of moving trains."

(12) "I charge you that if you believe from the evidence that while the train was being brought to a stop, and after being warned not to do so, Mr. Morgan attempted to get off the train while it was in motion, then you must find for the defendant."

(17) "I charge you, gentlemen of the jury, that if you believe from the evidence that in leaving the car at Limrock Mr. Morgan incurred a danger that would have appeared obvious to the mind of a reasonably prudent man of his age, under like circumstances, you should find for the defendant."

(21) "If you believe from the evidence that Limrock, the destination of plaintiff, was a flag stop for this train, and the trainmen stopped the train there a reasonably sufficient length of time for all passengers to get on and off while the train was standing still, that plaintiff failed to avail himself of this opportunity, and thereafter, when the trainmen were not aware of his presence and peril, and after the trainmen had given the signal for the train to move forward, he went upon the platform and steps of the car and stepped thereupon, then you must find for the defendant."

Lawrence E. Brown, of Scottsboro, for appellant.

Virgil Bouldin, of Scottsboro, for appellee.

McCLELLAN J.

Action by a passenger (appellee) against the carrier for personal injuries.

Since there is an extended statement of the circumstances attending the event, from the viewpoint of both the litigants, on the former appeal of this case, there is no necessity to reiterate. Southern Railway Co. v. Morgan, 171 Ala 294, 54 So. 626. We ruled on that appeal that there was error in not awarding a new trial upon the issue of contributory negligence of the plaintiff. We held, in substance, that the evidence strongly preponderated in favor of the view that the plaintiff contributed to his own injury by voluntarily, purposely stepping from the steps leading to the coach platform, thereby accepting as entirely negatived the plaintiff's theory that he was involuntarily dislodged from the steps or platform of the car by a jerk or jar of the car or train from which he was preparing to alight when it was put in motion. A very influential factor in this conclusion was the finding by this court that plaintiff's departure from the steps or platform of the car was removed "one or two car lengths" from the point at which that part of the train lay when started forward, or from the point at which his daughter (Mrs. Lemly) left the steps of the car, and was caught, or attempted to be caught, by the flagman. It was the prevailing idea that a jerk or jar of the car, when, if at all, it occurred, could not, on any basis of reason, have wrought plaintiff's involuntary dislodgement, and his consequent fall to the ground; that the normal relation of cause to effect wholly refuted the notion that the jerk or jar could have taken place, and its effect, under the circumstances, have accomplished so delayed a removal of plaintiff from the platform or steps of the car. The highest speed which the train could have, under the evidence,...