Opinion
8 Div. 503.
October 26, 1926. Rehearing Denied December 14, 1926. Affirmed on Mandate June 30, 1927. Rehearing Denied August 2, 1927.
Appeal from Circuit Court, Morgan County; J. E. Horton, Judge.
Action by Esther Laxson against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Certiorari granted by Supreme Court in Southern Ry. Co. v. Laxson, 217 Ala. 1, 114 So. 290.
Count 1 alleges that plaintiff took passage on one of defendant's passenger trains from Sheffield to Decatur, and that when said train stopped at the regular stopping place at Decatur for the purpose of allowing passengers to debark, and which place was plaintiff's ultimate destination, "she, being accompanied by her infant child, which she carried in her arms, and her son, to wit, 12 years of age, the defendant so negligently and carelessly conducted itself as that the plaintiff was caused, in the act of coming down the steps to debark, to suffer serious, painful, and permanent injuries; that her right foot, by reason of such negligence on the part of the defendant, its agents, servants, or employees, was knocked from under her, and her left foot was thereby left hanging and clinging on a top step of the said coach, doubled back under her, while the right was suspended between the bottom step and the ground, and as a result of such wrongs, negligence, and injuries plaintiff suffered," etc.
Count 2 contains the averment that "at the time her foot was so caught and hung, and she was suspended thereon with not only her own weight on her foot so doubled beneath her, but with that of her 21 months old baby, the defendant's flagman or trainman, * * * while she was so suspended, and in such a perilous and painful position, caught hold of her, he, the said trainman standing on the ground or walkway, and negligently pulled her down towards him, thereby greatly increasing the strain upon her said foot, and thereby greatly augmenting the pain and injury which she sustained," etc.
The evidence for the plaintiff tended to show that the trainmen saw and observed her with her baby and her small son and the luggage she carried, when she boarded the train and during her passage; that as she was in the act of descending from the car in which she was riding, with her baby in her arms and carrying a small satchel and a bundle, a passenger from behind bumped into her with a suit case, hitting her in the bend of the knee and causing her to lose her balance; that her left foot caught on one of the steps and her right foot shot downward, precipitating her weight upon the bent-under left foot; that no one offered to assist her in getting off the train; that the flagman was standing on the ground a few feet from the steps and with his back turned; that she cried for help, and the flagman came forward and took her hand or arm, and pulled her forward and down upon the injured foot, causing her such pain that she cried out, whereupon he released her and a bystander assisted her to her feet.
Defendant's evidence was to the effect at the time of plaintiff's fall the flagman, who was engaged in assisting passengers to alight, the conductor being likewise engaged at another coach, took the suit case, which the plaintiff's son was carrying, and placed it on the ground, and immediately turned back to the steps; that as he turned plaintiff fell; that she did not cry for help, but that he at once took her under the arm, assisted her to her feet, and, seeing that she could not stand, sat her on the step of the coach.
The court orally charged the jury in part as follows:
"It is the duty of a railroad to its passengers to use the highest degree of care, skill, and diligence in transporting passengers that a reasonably prudent person would use and is reasonably consistent with the running of its trains and the operating of its road."
These charges were given for plaintiff:
(2) "If Mrs. Laxson was injured while a passenger, in attempting, in a reasonable manner, to alight from a Southern Railway passenger train, and if such injury was proximately caused by the negligence of the railway company's servants and agents, as stated in the complaint, the verdict must be for plaintiff."
(4) "The court charges the jury that if Mrs. Laxson is entitled to a verdict she is entitled to compensation as damages for her pain and suffering and disabilities, if any, that were proximately caused by any such negligence as is set forth in her complaint (if such negligence there was), but not beyond the amount claimed in the complaint."
(5) "The court charges the jury that if Mrs. Laxson had a hand satchel, a baby, and a bundle, and if there were other passengers with baggage crowding behind her at or about the time she was trying to leave the train, and if she then and there needed the assistance of the trainmen in getting off, and if these conditions were seen and known by the trainmen while acting within the scope of their employment, they owed her the duty to help her to get off safely."
Charge 1, refused to defendant (to which charges 2 to 7, inclusive, are similar), is as follows:
(1) "It is the duty of the railway company to provide suitable and safe means for entering and alighting from its trains, but, having done this, and having stopped its train in proper position to enable passengers to avail themselves of those means in entering or alighting it is not bound to render them personal assistance."
Charges 8 and 9, refused to defendant, are as follows:
(8) "I charge you that the employee of the defendant, in assisting the plaintiff to extricate herself from her painful position from the steps of the car, was not to exercise the highest degree of care, but was to exercise ordinary care in and about the doing of this act."
(9) "I charge you that when a carrier or servant undertakes to assist a passenger in getting off of its train, he is required to exercise reasonable care in its performance."
S. A. Lynne, of Decatur, for appellant.
A carrier is not required to anticipate and provide against all occurrences resulting in injury to a passenger, and is not liable for injuries not proximately caused by its negligence. 5 Elliott on R. R. §§ 2395, 2397; C. of G. v. Carlisle, 2 Ala. App. 514, 56 So. 738; Illinois Central R. Co. v. Cruise, 123 Ky. 463, 96 S.W. 821, 8 L.R.A. (N.S.) 299. Charge 1, given for plaintiff, was erroneous. L. N. v Bowen, 212 Ala. 690, 103 So. 872. B. R., L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262. It is no part of the duty of the carrier to assist passenger to alight. Southern R. Co. v. Hayne, 209 Ala. 186, 95 So. 879; A. C. L. v. Farmer, 201 Ala. 603, 79 So. 35. Where a carrier's servant undertakes to assist a passenger, he is only required to use reasonable care in performing the service. Croom v. C., M. St. P., 52 Minn. 296, 53 N.W. 1128, 18 L.R.A. 602, 38 Am. St. Rep. 557. Charge 5 given for plaintiff was erroneous. C. of G. v. Carlisle, supra; L. N. v. Johnson, 168 Ky. 351, 182 S.W. 214, L.R.A. 1916D, 514; C., B. Q. v. Lampman, 18 Wyo. 106, 104 P. 533, 25 L.R.A. (N.S.) 217, Ann. Cas. 1912C, 788.
E. W. Godbey, of Decatur, for appellee.
It is the duty of carriers to exercise the highest degree of care about the matter of debarkation. Mobile Co. v. Therrell, 205 Ala. 553, 88 So. 679; Montgomery Co. v. Mason, 133 Ala. 508, 32 So. 261; Ala. Power Co. v. Hall, 212 Ala. 638, 103 So. 869. It is the duty of the carrier to assist a passenger in alighting if in need thereof. Birmingham, etc., Co. v. Norris, 2 Ala. App. 610, 56 So. 739; Fort Worth Co. v. Yantis (Tex.Civ.App.) 185 S.W. 969. Assistance, if proffered, must not be exercised negligently. Birmingham, etc., Co. v. Norris, 2 Ala. App. 610, 56 So. 739; A. C. L. v. Farmer, 201 Ala. 603, 79 So. 35; Louisville R. Co. v. Wilder, 143 Ky. 436, 136 S.W. 892. The law requires the highest degree of care of common carriers of passengers. Birmingham, etc., Co. v. Gray, 196 Ala. 42, 71 So. 689.
This was a suit by appellee against appellant to recover damages for personal injuries suffered by her while a passenger on one of appellant's trains.
At the written request of the appellee the court gave the following instruction to the jury:
(1) "The court charges the jury that the defendant railway company owed Mrs. Laxson the obligation to exercise the highest degree of care and caution to prevent injury to her as a passenger, and if it failed to do so, and if such failure proximately caused her to be injured in the manner stated in the complaint, the verdict must be for plaintiff."
Appellant inveighs heavily against the giving of this charge on the ground that it exacts too high a degree of care on its part in the transporting of passengers. If the charge stood alone we would be inclined to hold with the appellant, but, measuring it by the rules laid down in the case of Birmingham Ry., L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, a case strongly relied upon by appellant, it seems to us that it was given in this case without error. And we so hold. The trial court, in its oral charge, expressly qualified the term "highest degree of care" in accordance with the principles announced in the Barrett Case, supra, and at the conclusion of the oral charge, and before beginning to read the given written charges, the court stated to the jury that none of said written charges should be taken as contradicting the oral charge.
Written charge 2 given at appellee's request is criticized for its failure to include the requirement that the plaintiff must make the attempt to alight at a proper time and place. However, all the evidence in this case shows that plaintiff (appellee) was, at the time she was injured, attempting to alight at the proper time and the proper place. So we find no error in the giving of this charge.
Written charge 4, given at appellee's request, is not subject to the criticism offered, and was given without error.
Written charge 5, given at appellee's request, does not, we think, state the law correctly. The charge, confusingly worded, conveys to the mind the idea or impression that the fact that appellee had a hand satchel, a baby, and a bundle, and that there were other passengers with baggage crowding behind her at or about the time she was trying to leave the train, if seen and known by the trainmen, imposed upon them the duty of assisting her to alight. This, as we understand the decisions of our Supreme Court, is not the law. As was said by this court (in an opinion, though prepared by Mr. Justice Somerville of the Supreme Court) in the case of Central of Ga. Ry. Co. v. Carlisle, 2 Ala. App. 514, 56 So. 737:
"By the weight of authority, * * * it is held to be the duty of the carrier to assist a passenger in alighting if, obviously to its agents in charge, such passenger is then too sick or infirm or disabled to safely alight without aid. * * * But it is not the carrier's duty to anticipate such disabilities or needs, nor to be on the lookout for them."
In this case there was nothing to put appellee in the class of the aged, the very young, infirm, or helpless passengers, to whom railroad companies are under obligation to furnish aid in getting on or alighting from their trains. It was the duty of those in charge of the train to announce the station, to stop the train, and hold it such length of time as gave the passengers a reasonable opportunity to alight in safety. There is no intimation that appellant failed of its duty in these respects. The giving of charge 5 constituted reversible error. L. N. R. Co. v. King, 198 Ala. 168, 73 So. 456; B. R., L. P. Co. v. Barrett, supra; Central of Ga. Ry. Co. v. Carlisle, supra.
Written charges 1, 2, 3, 4, 5, 6, and 7, refused to appellant, were misleading in not providing for the exceptions to the prevailing rule therein stated, and properly refused. Central of Ga. Ry. Co. v. Carlisle, supra.
Written charges 8 and 9, refused to appellant, were incorrect in their statement of the law, and hence properly refused. There was no error in refusing to give the general affirmative charges in favor of appellant as to either counts 1 or 2, or to the complaint as a whole.
As best we could we have ferreted out and written to the points argued and insisted upon in appellant's brief, which was prepared without regard to the rules.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
Affirmed, on authority of Southern Ry. Co. v. Laxson, 217 Ala. 1, 114 So. 290.