Opinion
2 Div. 69.
November 21, 1935. Rehearing Denied January 16, 1936.
Appeal from Circuit Court, Sumter County; Joe M. Pelham, Jr., Judge.
Geo. O. Miller and Ira D. Pruitt, both of Livingston, for appellant.
A tort action will lie for injury caused by a breach of duty which a common carrier owes a passenger. Louisville N. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874. Count 8 alleges that plaintiff was a passenger on defendant's train, riding on a purchased ticket; that, at the time plaintiff was alighting or attempting to alight from said train, no agent or servant of defendant was present to aid, assist, or direct plaintiff in alighting from said train. This was sufficient to fully advise defendant of the negligence claimed. 5 Mayfield's Dig. 754; Birmingham Ry., L. P. Co. v. King, 149 Ala. 504, 42 So. 612; Birmingham Ry. L. P. Co. v. Adams, 146 Ala. 267, 40 So. 385, 119 Am.St.Rep. 27; Birmingham Ry. L. P. Co. v. Hunt, 200 Ala. 560, 76 So. 918. Defendant was under duty to notify plaintiff of the arrival of plaintiff at her destination. Central of Georgia R. Co. v. Crane, 189 Ala. 538, 66 So. 604; Central of Georgia R. Co. v. Barnitz, 17 Ala. App. 201, 84 So. 474. A train must stop at the usual place for discharge of passengers such length of time as is reasonable to allow passengers, in the use of reasonable and prudent diligence, to leave the train. Louisville N. R. Co. v. Dilburn, 178 Ala. 600, 59 So. 438; Louisville N. R. Co. v. Cornelius, 183 Ala. 203, 62 So. 710; Central of Georgia R. Co. v. Mathis, 9 Ala. App. 643, 64 So. 197. Plaintiff was only required to do and act as a reasonable and prudent person would do under similar circumstances. Sweet v. Birmingham R. E. Co., 136 Ala. 166, 33 So. 886. The evidence made a question for the jury as to negligence on the part of defendant and as to contributory negligence on the part of plaintiff. It was thus error to give the affirmative charge in defendant's favor. Sweet v. Birmingham R. E. Co., 136 Ala. 166, 33 So. 886; Dilburn v. Louisville N. R. Co., 156 Ala. 228, 47 So. 210, 211; Louisville N. R. Co. v. Dilburn, 178 Ala. 600, 59 So. 438; Central of Georgia R. Co. v. Williams, 17 Ala. App. 259, 84 So. 633.
Pettus Fuller, of Selma, for appellee.
There is no duty to assist a passenger in alighting unless the carrier has accepted as a passenger one who is unable through disability to care for himself and such disability is known at the time of acceptance. Central of Georgia R. Co. v. Carlisle, 2 Ala. App. 514, 56 So. 737; Southern R. Co. v. Hayne, 209 Ala. 186, 95 So. 879. In an action for negligence, the burden is upon the plaintiff to prove not only that defendant was negligent, but also that such negligence was the proximate cause of the injury. Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90; Koger v. Roden Coal Co., 197 Ala. 473, 73 So. 33. In an action for negligence, the plaintiff's own evidence may show contributory negligence. Louisville N. R. Co. v. Lee, 97 Ala. 325, 12 So. 48.
Plaintiff, accompanied by her husband, was a passenger on defendant's train, en route from Akron to Wedgeworth, a flag station, and in count 7, upon which this cause was tried, claims damages resulting from the "sudden jerking or starting" of the train as she was alighting therefrom. There was no depot, but, according to her proof, a signboard with the name of the station indicated the place for passengers to disembark, and that she and her husband alighted from the train as it stopped at this particular location, which was the proper place for discharge of passengers.
Her proof further tended to show that no one called the station, but that she and her husband, discovering they had reached their destination, and familiar with the place for passengers to alight, proceeded with reasonable promptness to leave the train; the husband alighted, followed by plaintiff, and as she was on the steps the train whistle blew, the train starting with a sudden jerk. She was caught by her husband, who assisted her in alighting, but plaintiff insists she nevertheless suffered injuries from the sudden movement of the train.
It was, of course, the defendant's duty to stop the train long enough to give plaintiff a reasonable time in which to alight, as it is the duty of all common carriers to safely deliver their passengers at the station to which they have paid their fare, and their duty also includes the announcement of the arrival of the train at the station, with a reasonable opportunity to then leave the car. Central of Georgia Ry. Co. v. Carlisle, 2 Ala. App. 514, 56 So. 737; Southern Ry. Co. v. Hayne, 209 Ala. 186, 95 So. 879.
The following, among others of our authorities, sufficiently demonstrate, without further discussion, that plaintiff's proof made out a case of negligence for the jury's determination, and that reversible error was committed by the court in giving for the defendant the affirmative charge. Dilburn v. Louisville Nashville R. R. Co., 156 Ala. 228, 47 So. 210; Louisville Nashville R. R. Co. v. Dilburn, 178 Ala. 600, 59 So. 438.
Any other conclusion would be out of harmony with the high degree of care due by the carrier to the passenger. Indeed, as we read defendant's brief, the argument in support of the trial court's ruling rests in the main upon the contention that plaintiff, as a matter of law, was guilty of contributory negligence such as to bar a recovery. But the matter of contributory negligence depends upon varying circumstances, and the following cases suffice to show that this question also was one for the jury's determination: Dilburn v. Louisville Nashville R. R. Co., supra; Central of Georgia Ry. Co. v. Williams, 17 Ala. App. 259, 84 So. 633; Louisville Nashville R. R. Co. v. Dilburn, supra.
Count 8 was rested for its averment of negligence solely upon the absence of any agent or servant to aid plaintiff in alighting from the train. Our cases are to the effect that the law does not impose upon the carrier the duty of assisting passengers to alight from its cars. Central of Georgia Ry. Co. v. Carlisle, supra; Southern Ry. Co. v. Hayne, supra.
There are exceptions to this general rule, as noted in these authorities, but with them we are not here concerned, as no effort is made in this count to bring the case within the influence thereof. Demurrer was properly sustained to count 8.
For the error indicated, let the judgment stand reversed.
Reversed and remanded.
BOULDIN, BROWN, and FOSTER, JJ., concur.