Watkins v. Birmingham Railway & Elec. Co.

• Decision Date: 07 November 1898
• Parties: WATKINS v. BIRMINGHAM RAILWAY & ELECTRIC CO.
• Court: Alabama Supreme Court

24 So. 392

120 Ala. 147

WATKINS v. BIRMINGHAM RAILWAY & ELECTRIC CO.

Supreme Court of Alabama

November 7, 1898

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by William R. Watkins against the Birmingham Railway &amp Electric Company. There was a judgment for defendant, and plaintiff appeals. Reversed.

The cause was tried upon issue joined upon the plea of the general issue and the plea of contributory negligence. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The mere going upon the platform by a passenger, and getting upon the steps of a dummy car, while the same is running slowly and approaching the passenger's destination, is not necessarily contributory negligence on the part of a passenger." (2) "If the jury believe from the evidence that the sole cause of the plaintiff's injury was a sudden jerk of the train, and that he acted only as an ordinarily prudent person would have acted in getting upon the step of the car, then your verdict must be for the plaintiff, if the jury believe the evidence." The court, at the request of the defendant, gave to the jury the following written charges, to the giving of each of which the plaintiff separately excepted: (1) "The undisputed evidence, if the jury believe it, shows that the plaintiff was guilty of negligence." (2) "If the jury believe from the evidence that the plaintiff was guilty of negligence which proximately contributed to his injury, then their verdict must be for the defendant." (3) "If the jury believe from the evidence that the plaintiff did not attempt to leave the train in an ordinarily prudent manner, and by reason of this fact he was injured, then their verdict must be for the defendant." (4) "I charge you, gentlemen of the jury, that it is negligence in a passenger to attempt to leave a moving train without necessity." (5) "I charge you that the plaintiff was guilty of negligence in getting down upon the steps while the train was in motion and before it reached the usual stopping place." (6) "If the jury believe from the evidence that the plaintiff attempted to leave the train in a negligent manner and was injured thereby, then their verdict must be for the defendant." (7) "If the jury believe from the evidence that the plaintiff was in a safe place on said car as it approached the usual stopping place, and without necessity left such safe place, and got down upon the lowest step, while the train was in motion, and was thrown off or fell off to the ground by reason of the fact that he was on said step, then their verdict must be for the defendant." There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the refusal to give the charges requested by him and the giving of the charges requested by the defendant.

Bowman & Harsh, for appellant.

Walker Porter & Walker, for appellee.

BRICKELL C.J.

Appellant was a passenger on a train operated by appellee on its "East Lake Dummy Line," between East Lake and Birmingham, having boarded the train at Woodlawn to ride to Twenty-Fourth street, in Birmingham. At the time he paid his fare he told the conductor he desired to get off at Twenty-Fourth street, and when the train was between Twenty-Fifth and Twenty-Fourth streets, he left his seat in the rear car, and went out to the back platform; and as the train slowed up for the west crossing, which was the proper side of the street on which to stop, and after the engine and front car had passed over the crossing, and while the rear car was passing over it, at a speed of about three miles an hour, he got on the lower step on the south side of the platform preparatory to stepping off, when the speed of the rain was suddenly increased, and he fell to the ground sustaining the injuries complained of and for which he seeks to recover in this action. There are two tendencies of the evidence with respect both to the position of the plaintiff on the step and the manner in which he fell therefrom. Plaintiff testifies that he "got down on the step with his face to the south, with his right hand hold of the guard, ready to get off," and that while "in that position, and ready to get off, when the car should stop, the car, instead of stopping, jerked forward suddenly, and threw plaintiff down"; and the inference from this testimony is that plaintiff's position on the step was the position ordinarily assumed by one about to step off a car, with his back to the car and his right hand grasping the front guard, and that he was not in the act of stepping off when the car suddenly "jerked forward." One of the inferences deducible from the testimony of the only other witness in the case was that plaintiff was standing on the step with his back to the street, his right hand grasping the rear guard, and his left hand the front guard, and that he was in the act of stepping off backwards, when the speed of the car was suddenly increased. The witness testified: "Plaintiff was standing on the lower step of the platform, and as soon as it started up he stepped off. I could not tell positively whether he stepped off or was jerked off. He was standing in a position to step off, and I could not say he was jerked off. He was standing with his right hand hold of the rear guard, and his left hand hold of the front guard, at the time the train started up, and the next instant he was off. When he touched the ground he was in a falling position, and took two or three steps and fell. As his feet struck the ground, his left hand became disengaged from the car." The instructions to the jury, given at the request of the defendant, assume that the conduct of the plaintiff, as shown by the above statement of facts, constituted negligence per se, and the correctness of this proposition is the principal question presented for consideration. The trial court charged, upon request of the respective parties, that each was guilty of negligence, and the only question left to the jury was, therefore, whether the plaintiff's negligence contributed proximately to his injury.

While there are some cases which hold that the act of a passenger in voluntarily leaving a car while it is in motion constitutes contributory negligence, the better doctrine, and that sustained by the great weight of authority, is that such conduct on the part of the passenger is not negligence per se. There may be, it is true, exceptional circumstances attending the attempt thus to alight, such as the great speed of the train, the age or infirmity of the passenger, or his being incumbered with bundles or children, or other facts which render the attempt so obviously dangerous that the court may, where the testimony is undisputed, declare as matter of law that...