Southern Ry. Co. v. Harrington

• Decision Date: 26 February 1910
• Citation: 52 So. 57,166 Ala. 630
• Parties: SOUTHERN RY. CO. v. HARRINGTON.
• Court: Alabama Supreme Court

52 So. 57

166 Ala. 630

SOUTHERN RY. CO. v. HARRINGTON.

Supreme Court of Alabama

February 26, 1910

Appeal from Circuit Court, Walker County; A. O. Lane, Judge.

Action by C. F. Harrington against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The pleadings and the facts are sufficiently set out in the opinion of the court. The following charges were refused to the defendant: (1) "The court charges you that if you are reasonably satisfied from the evidence that plaintiff's injuries were proximately caused by inadequate clothing, worn by plaintiff, to meet the demands of the season and climate, you must find for the defendant." Charges 9 and 10 were the affirmative charges as to the third and fourth counts. (11) "The court charges you that if you believe from the evidence that the cold condition of the car, as complained of by the plaintiff, was due to unusual cold weather, and that plaintiff made no complaint to those in charge of the train and made no effort to remedy or have remedied the condition of the car, you must find for the defendant." (12) "If you are reasonably satisfied from the evidence that the mail car was equipped with stoves sufficient to properly warm the car, and that sufficient fuel was placed in the car the court charges you that it was the duty of the plaintiff for his own protection to start or cause to be started the fire in said stove."

Bankhead & Bankhead, for appellant.

W. J Martin, and James A. Mitchell, for appellee.

MAYFIELD J.

Appellee, a railway postal clerk, sues the defendant, railroad company, a carrier of the United States mail, for failure to properly heat or warm the car in which the mails were carried, and in which his duties required him to work and remain while on duty, as such postal clerk, by reason of which failure, on the part of the defendant, he was unduly exposed to the cold and was thereby made sick, had his feet frost-bitten, contracted severe cold, bronchitis, etc. The defendant attempted to plead contributory negligence and assumption of risk as a defense to the action, together with the general issue. However, the defendant first interposed a plea in abatement, for that the wrongs and injuries complained of did not wholly occur within the county of Walker, in which the action was brought, that plaintiff did not reside in Walker county at the time of the injury, the run in which plaintiff was engaged being from Birmingham, Ala., to Greenville, Miss., and that a part of the wrongs and injuries complained of were committed and suffered, if at all, outside of Walker county, that of the venue. This plea was filed under section 6112 of the Code of 1907. A demurrer to this plea in abatement was sustained, which is the first assignment insisted upon as error.

The plea was open to the demurrer leveled against it. It is not required by the statute (Code 1907, § 6112) that the injury should have wholly occurred within the county in which suit is brought--partly therein is sufficient; nor is it necessary that plaintiff should have resided in the county at the time of the injury--at the time of bringing the suit is sufficient. The original complaint claimed damages in one count for wrongs and injuries suffered on three separate and distinct days, a demurrer being sustained to it for this reason. The complaint was amended by adding three counts, each claiming damages for the wrongs committed on one day only, though each count claimed as for a different day. Demurrers were interposed to the amended complaint and were overruled, and the only material difference in the counts was that, as amended, each claimed as for a different day. Only the rulings as to the first count as amended are insisted upon as error, and only such will be treated.

In order to determine the sufficiency of this count, or of any other in the complaint, or the correctness of the ruling upon the demurrer thereto, it becomes necessary to first determine the relation of the parties, and their respective rights and duties, one to the other. It has been generally, if not uniformly, held that the relation of carrier and passenger exists between railroads carrying United States mails, and the mail agents and postal clerks, and not that of master and servants. The same rule is declared as to express messengers. Elliott on Railroads (1897 Ed.) § 1578; Hutchinson on Carriers, § 1017 (563). These authorities hold that while postal clerks or mail agents cannot avail themselves of the contract between the railroad carrier and the government, and make it a foundation for recovery, they can, however, rest upon the breach of the duty which the law imposes upon every person who undertakes to perform a service for another, whether gratuitously or not, to exercise the degree of care and skill in its performance which the nature of the undertaking requires; the obligation to carry, therefore, in such cases, may arise from duty as well as from contract.

It is indisputably the duty of railroads, as common carriers, to warm their cars for the comfort and safety of their passengers, and they are liable in damages for injuries suffered in consequence of failure to discharge such duty. The passenger, however, may, in such cases, be guilty of such contributory negligence as to cause the injury complained of and if it is alleged and proven that such contributory negligence proximately caused the injury complained of, on account of failure to heat the car, of course the passenger cannot recover. The failure of the passenger to protect himself from unnecessary cold, or to provide sufficient clothing, may or may not, be contributory negligence, depending upon the peculiar facts of each particular case. Taylor v. Wabash R. R. Co. (Mo.) 38 S.W. 304, 42 L. R. A. 110, and note. The true rule is, as stated by Chief Justice Smith, in the case of Turrentine v. R. & D. R. R. Co., 92 N.C. 641, in which he correctly quotes from an English case, " 'Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary and common care and caution, that but for such negligence and want of ordinary care and caution on his part, the misfortune would not have happened. In the first place the plaintiff would be entitled to recover, in the latter not; as but for his own fault the misfortune would not have happened.' And in explanation of the proposition he adds: 'Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it were such that but for that negligence or want of ordinary care and caution, the misfortune would not have happened; nor if the defendant might, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff.' Wightman,...