Southern Ry. Co. v. Norwood
| Citation | 186 Ala. 49,64 So. 604 |
| Parties | SOUTHERN RY. CO. v. NORWOOD. |
| Decision Date | 12 February 1914 |
| Court | Supreme Court of Alabama |
Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.
Action by Eliza Norwood against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Wert & Lynne, of Decatur, for appellant.
Callahan & Harris, of Decatur, for appellee.
The gravamen of the complaint is that plaintiff, a woman of 35 years of age, and a passenger on defendant's train from Trinity to Courtland, was thrown off the train to the ground and injured by reason of the negligent operation of the train by defendant's servants.
Plaintiff's whole case is comprehended in her testimonial statement that after the train stopped at the Courtland station she went to the train door and, just as she started out on the top step with her hand on the railing, "the train started off with a jerk," breaking her hold, and throwing her to the ground.
In order to make out a case of actionable negligence against defendant with respect to her fall from the train, it was necessary for plaintiff to show either that the train started off prematurely without having given her reasonably sufficient time for alighting in safety; or else, if a sufficient stop had been made for that purpose, that one of defendant's servants in charge of the train knew or should have known that she was in the act of alighting, or in some place of peril, so that starting the train would subject her to the danger of being injured thereby, and, with knowledge or notice of such perilous position and danger either started the train in motion, or negligently failed to prevent its starting by another. B.U. Ry. Co. v. Smith, 90 Ala. 60, 8 So. 86, 24 Am.St.Rep. 761; Highland Ave., etc., R. Co. v. Burr, 92 Ala. 291, 9 So. 410, 13 L.R.A. 95, and cases cited; C. of G. Ry. Co. v. McNab, 150 Ala. 332, 43 So. 222; Birmingham R. Co. v. Norris, 4 Ala.App. 363, 59 So. 66; L. & N.R.R. Co. v. Dilburn, 59 So. 438; 6 Cyc. 613, IV.
Where the facts are undisputed, what is a reasonable time is sometimes a question of law. C. & W.R. Co. v. Ludden, 89 Ala. 612, 7 So. 471. It here appears, without material dispute in the evidence, that the plaintiff, who was able-bodied and without impediments other than a hand bag, was allowed ample time for alighting from the train while it stood on the siding at the usual place at the station. Plaintiff herself admits this, and it is not denied by counsel in brief.
It conclusively appears also that none of the trainmen knew or had any reason to suspect that the plaintiff was in the act of alighting, or in any place of danger, at the time the train began backing in order to get upon the main track and resume its journey.
Plaintiff's counsel rely, however, on the proposition that, regardless of knowledge by defendant's servants that the plaintiff was in a place of danger, they were negligent in starting the train with a jerk. This is not the law, as often declared by this court. Mobile L. & R. Co. v. Bell, 153 Ala. 90, 45 So. 56; B.R.L. & P. Co. v. Parker, 156 Ala. 251, 47 So. 138; B.R.L. & P. Co. v. Barrett, 60 So. 262, 265. It does not appear that the movement in question was sudden, violent, or in any way unusual, and, even if it so appeared, there is nothing to show that it was in any degree a breach of duty to this plaintiff.
Section 5473 of the Code provides, among other things, that the engineer, or other person in charge of the engine, "must blow the whistle or ring the bell immediately before, and at the time of leaving such stopping place." The testimony of the conductor, fairly interpreted, shows that the engineer complied with this requirement on the occasion in question, so that, if it were conceded that the quoted provision prescribes a duty for the benefit of passengers on the train, there was nothing here of which plaintiff could complain.
While there are some general expressions in two earlier cases ( M. & C.R.R. Co. v. Copeland, 61 Ala. 376, 379; and G.C.R.R. Co. v. Letcher 69 Ala. 106, 109, 44 Am.Rep 505) to the effect that the omission of this particular duty is negligence per se, and imposes liability for all injuries to person or property resulting therefrom, these dicta were afterwards qualified in A. G.S.R.R. Co. v. Hawk, 72 Ala. 112, 116, 47 Am.Rep. 403, where it was said: ...
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