Western Ry. of Ala. v. Brown
| Decision Date | 23 February 1967 |
| Docket Number | 5 Div. 793 |
| Citation | 196 So.2d 392,280 Ala. 543 |
| Parties | WESTERN RAILWAY OF ALABAMA v. Mellie A. BROWN. |
| Court | Alabama Supreme Court |
Walker & Hill, Opelika, for appellant.
Cunningham & Bounds, Mobile, for appellee.
Defendant appeals from a judgment for plaintiff in an action for personal injury allegedly suffered by plaintiff when she got off defendant's train on which she had been riding as a passenger.
Defendant argues in support of nineteen grounds for reversal.
Defendant says the judgment should be be reversed because the court erred in refusing affirmative charges requested in writing by defendant. Defendant says it was entitled to such charges for three different reasons, first, because the proof failed to sustain the allegations of the complaint.
The complaint contained two counts. In Count One, plaintiff alleges that defendant was operating trains between Mobile and Opelika and was a common carrier of passengers for hire; that plaintiff bought a ticket at Mobile to be carried on defendant's train from Mobile to Opelika and became a passenger on defendant's train; that when the train reached Opelika, as plaintiff attempted to get off, she fell and suffered the injuries complained of. Count One concludes:
'Plaintiff alleges that all of her injuries and damages were caused as a direct and proximate result of the negligence of the defendant in negligently failing to provide the Plaintiff with a stool or box on which to alight from its said train when such was necessary by reason of the unreasonably high distance from said train to the ground.'
Count Two is substantially the same as Count One except for the concluding paragraph of Count Two which is as follows:
'Plaintiff alleges that all of her injuries and damages were caused as a direct and proximate result of the negligence of the defendants (sic) in negligently failing to warn or give notice to the Plaintiff that there was no stool or box on which the Plaintiff could alight when such was necessary by reason of the unreasonably high distance from said train to the ground.'
Defendant says that, by specifically averring the particulars which constituted defendant's negligence, plaintiff made the distance between the train and the ground a material issue in the case, that defendant was not negligent under either count unless the train was an unreasonably high distance from the ground, that plaintiff failed to adduce any evidence of the distance between the train and the ground, and, therefore, that plaintiff failed to prove a material averment of the complaint and defendant was entitled to the affirmative charge.
Defendant says plaintiff's evidence did not tend to establish anything more than the 'distance from the Last step to the ground or to a Concrete paved portion (sic),' and that plaintiff did not offer any evidence of the height of 'the train itself' off the ground. Defendant says that 'evidence tending to establish the distance from the Last step or the distance from some Undetermined place on the steps to the Ground or to the Concrete portion (sic) furnishes no proof whatsoever of the height of the train from the ground.' Defendant says further that the uncontradicted testimony of defendant's witness Williams shows that the distance of the train itself from the ground is only seven inches, which is the height of the rail and the tire plate.
It is elementary that the burden is upon the plaintiff to prove her complaint where the general issue is pleaded. Calvert Fire Insurance Co. v. Phillips, 41 Ala.App 610, 145 So.2d 848; Central of Georgia Railway Co. v. Gross, 192 Ala. 354, 68 So. 291.
When a count contains several averments, all of which combined together make up the one cause of action averred, it is necessary to prove each of the averments in order to sustain the cause of action as laid. Birmingham Railway & Electric Co. v. Baylor, 101 Ala. 488, 13 So. 793; Mazer v. Brown, 259 Ala. 449, 66 So.2d 561.
Counts One and Two each state a single cause of action. The allegations are that plaintiff was a passenger on defendant's train and that she attempted to get off the train at her destination. These allegations show that defendant owed plaintiff a duty.
The duty of the carrier is to exercise due care in providing reasonably safe and convenient means for the assistance and protection of passengers in getting on and off its cars. Central of Georgia Ry. Co. v. Carlisle, 2 Ala.App. 514, 56 So. 737; Atlantic Coast Line R. Co. v. Farmer,201 Ala. 603, 79 So. 35.
In the absence of circumstances rendering such assistance necessary, a carrier is not required to furnish a boarding or alighting passenger with a portable box or footstool, but, where the car step is unreasonably high, the carrier should furnish a box or footstool to facilitate the boarding or alighting of a passenger and should exercise due care to see that such box or stool is in a safe condition and is placed or used by its employees in a safe manner. Where the lowest car step is not higher above the ground than is usual for other vehicles from which people safely alight without such assistance, it has been held that a footstool need not be provided. Farmer's case, supra.
In the case at bar, plaintiff undertook to allege that her injuries were the proximate result of defendant's negligence in failing to provide a stool or box on which plaintiff could alight from the train. Plaintiff also undertook to state that defendant owed a duty of furnish a stool or box by alleging that a stool or box 'was necessary by reason of the unreasonably high distance from said train to the ground.' The allegation of 'the unreasonably high distance from said train to the ground' is one of the bundle of allegations necessary to show that defendant owed plaintiff a duty to provide a footstool, and, if plaintiff failed to offer any evidence which will support a finding that there was such an unreasonably high distance from train to ground as to require a footstool, plaintiff failed to offer sufficient proof to sustain the cause of action as laid and the court erred in refusing the affirmative charges requested by defendant.
Plaintiff testified that the baggage man was helping her She testified further that there was no stool or box 'between the last step and the ground.' In answer to a question asking for her best judgment of the distance 'from the last step on the railroad car to the ground or the concrete platform on the occasion of the accident,' plaintiff said: We think this evidence sufficient to support a finding that the distance from the last step on the car to the ground was so unreasonably high as to place on defendant the duty of providing a box or stool on which plaintiff could safely alight. Defendant argues, however, that proof of the distance from the last step on the car to the ground is not proof of the distance from 'said train' to the ground.
We do not agree. Every person who has seen a railroad train, such as is commonly used to haul passengers, knows that the train travels on rails less than a foot high. It is also known that such a train travels on wheels which are a part of the train and that the wheels roll along on the rails. It is also known that passengers commonly disembark from trains on steps which are a part of the railroad car. All this we say to illustrate what we think is the meaning of the allegations that there was an unreasonably high distance from 'train to the ground' taken in context with the prior allegation that as plaintiff 'attempted to get off of said train at said place, she fell and suffered,' etc. In our understanding, and, we think, in the common understanding of men, the allegation that a stool or box was necessary because 'of the unreasonable high distance from said train to the ground' means that a stool or box was necessary because of the distance from train to ground at the point where plaintiff was getting off the train and not at the point where the top of the car was or at the point where the wheel touched the rail or at any other place on the train. Since the distance alleged means the distance at the point where plaintiff was getting off the train and the distance proved was also at the point where plaintiff was getting off the train, we hold that there was not a complete absence of proof to sustain the allegation that the distance from train to ground was unreasonably high.
Defendant says it was entitled to the affirmative charge because there was a fatal variance between allegation and proof.
Defendant here reiterates that proof of distance from the last step to ground does not establish the distance from the train to the ground. We have already said, with respect to failure of proof, that we are of opinion that proof of distance from last step to ground would support the allegation of distance from train to ground. For the same reasons, we do not think there was a fatal variance as to proof of the allegation of distance from train to ground. The last step was a part of the train and the proof tends to show the distence from that part of the train to the ground. Moreover, the distance to the ground from the last step was the only distance at issue in the case.
Defendant says that, at best, plaintiff's testimony is that, in her judgment, 'it' was 'almost three feet' without specifying what the pronoun 'it' referred to. This argument places excessive emphasis on a single word. One question to plaintiff recites:
'Q What in your best judgment was the distance from the last step on the railroad car to the ground or the concrete platform on the occasion of the accident?'
Defendant's objection was overruled and the next question was:
'Q Now, tell the Jury what your...
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