Opinion
4 Div. 776.
April 18, 1918.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
John R. Tyson, of Montgomery, for appellant. H. K. Martin, of Dothan, for appellee.
A carrier must exercise care in providing reasonably safe and convenient means for the assistance and protection of passengers in getting on and off its cars. Central of Ga. Ry. Co. v. Carlisle, 2 Ala. App. 514, 56 So. 737; 10 C. J. 933, § 1354. "In the absence of circumstances rendering such assistance necessary, a carrier is not required to furnish a boarding or an 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 employés in a safe manner." 10 C. J. 934, § 1354.
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. Young v. Mo. Pac. R. R. Co., 93 Mo. App. 267; Tex. Mid. R. R. Co. v. Frey, 25 Tex. Civ. App. 386, 61 S.W. 442.
But where the distance from the step to the ground is three feet or thereabouts, it is the carrier's duty to provide a footstool or some other convenient means to aid the passenger in getting on or off the car. I. C. R. R. Co. v. Cheek, 152 Ind. 663, 53 N.E. 641; Cincinnati, etc., R. R. Co. v. Bell, 74 S.W. 700, 25 Ky. Law Rep. 10.
If the proper physical facilities are provided for this purpose, no duty rests upon the carrier in ordinary cases to render manual assistance to its passengers, even though requested to do so. 10 C. J. 931, § 1352, 5. The general rule, and some of the exceptional cases, are stated and discussed in Central of Ga. Ry. Co. v. Carlisle, supra; 10 C. J. 932, § 1353b.
The complaint is certainly subject to the criticism that it is loosely and inartificially drawn.
In the first and third counts, based on the failure or refusal of the conductor to assist her in alighting, which we interpret as meaning personal and manual assistance, plaintiff invokes the duty of such assistance upon the premise solely that:
"On account of conditions existing at said Grimes she could not get off of said coach without peril to herself (specifying); that it was raining, and the steps of said coach were wet and slippery."
This is manifestly not sufficient to show a duty of assistance by the conductor, for there is no averment showing any want of facilities for leaving the car in some other way than by attempting to step immediately across from the car to the depot platform; nor does the merely wet and slippery condition of the car steps impose such a duty. These counts were subject to several grounds of the demurrer, which should have been sustained.
The second count, like the first and third, is based on the failure or refusal of the conductor to assist plaintiff in leaving the coach. Here, the duty of assistance is invoked upon the premise that, "on account of the arrangement of the depot and tracks at said station," plaintiff could not, unaided, leave the coach on the right "because the coach was up against the depot platform, and plaintiff could not step from said coach to the depot without assistance; and, the ground on the left-hand side of the coach being much lower than the coach, plaintiff could not get down from the coach."
The fact that the ground on the left was much lower than the coach does not show the absence of safe and convenient facilities for alighting, and does not show a duty to provide a means for alighting at another place voluntarily chosen by plaintiff for the purpose; nor does it show, without more, the duty of manual assistance by the conductor on either side. Hence we conclude that this count was also subject to the demurrer.
Counts 4 and 5 are grounded upon defendant's failure to have and maintain a safe and convenient means of egress from its train at Grimes, and we think they are sufficient, and not subject to the demurrer.
Defendant's special plea was no more than the general issue, and its elimination on plaintiff's motion was not prejudicial error.
The fact that on former occasions movable planks had been laid across from the coach steps to the depot platform, and that plaintiff and other passengers had alighted by that means on that side, did not impose upon defendant the special duty of continuing that kind of service, nor estop it from designating, or requiring passengers to alight by, other means at a different place.
The testimony admitted for plaintiff in this behalf was not relevant to any issue in the case, and we think it should have been excluded.
For the errors pointed out, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.