Johnson v. Louisville & Nashville Railroad , 104 Ala. 241 ( 1893 )

COLEMAN, J.

The plaintiff as administratrix, sued to recover damages for the killing of intestate, alleged to have been .caused by the wrongful negligence of the defendant. The defendant pleaded the general issue, and as a second plea the contributory negligence of the deceased. The plea of contributory negligence was defective in the respect pointed out in the demurrer. It was too general, and the court erred in overruling a demurrer to this plea. — Term. Coal, Iron & R. R. Co. v. Herndon, 100 Ala. 451. We can not presume that if the facts relied upon to sustain this plea had been stated, that plaintiff would not have met them with rebutting testimony. It was the plaintiff’s right to know the facts, and to have an opportunity to meet them.

So far as the evidence bears upon the question of the right of the conductor to eject the deceased from the car' it is substantially the same as when the case was here' on a former appeal.- L. & N. R. R. Co. v. Johnson, 92 Ala. 204. The conduct of the deceased was reprehensible, his language obscene and insulting, and his refusal to pay his fare, justified the conductor in ejecting him from the car. We feel safe in stating that under the evidence, the death of the deceased was not caused by the car from which he was ejected, nor by any act of violence on the part of the conductor in putting him off. The evidence shows that a freight car running on schedule was following the passenger car, about thirty minutes late, both going north, and that a passenger train was due coming south, several hours late, and a passenger going' north was due forty minutes after the south passenger had passed the place where the body of deceased was found. It was not known certainly that any person had been killed, until discovered by this last passenger train going north, about 2.25 a. m. The evidence shows that deceased was put off at night, that it was very dark, and that he -was put off in a cut, and that' it might have been two hundred yards, either north or south, to the end of the cut. The deceased was familiar with the cut and condition of the adjacent lands, having lived near by for several years. There was room in the cut, by standing near the waffs, for trains to pass, and there were places along the cut where a person could get out from the track. There is no evidence tending to show* that the officers or employés of the defendant, operating the freight train which followed the train from which deceased was ejected, or the subsequent passenger trains, had any notice or knowledge of the peril of deceased. Negligence can not be imputed to them. If there were • no other facts in this case we would declare as matter of law that plaintiff could not recover.

It is contended for plaintiff, that because of deceased’s drunken condition, the conductor who ejected him was not justified in putting him off and leaving him at the time and' place where he was put off and left. Under the facts in the present record, that is the only issue in the case. What is the rule of law in such cases? Drunkenness does not exempt a person from the responsibility of contributory negligence. If intoxication renders a person reckless or indifferent to consequences or inadvertent, or thoughtless, and he fails to exercise due care, his failure or omission will not be excused, because superinduced by his intoxication. The law exacts from one voluntarily intoxicated, the same care and precaution to avoid injury as it would fr'om a sober person of ordinary prudence under like circumstances. — Columbus & Western Railway Co. v. Wood, 86 Ala. 164; 4 Amer. & Eng. Encyc. of Law, p. 78 ; L. & N. R. R. Co.v. Johnson, 92 Ala. 204.

There is another principle of law to be observed which requires of all persons, in.the exercise of a right,' or the performance of duty, that it be done with reasonable regard to the presexwation of life and prevention of great bodily harm or the infliction of unnecessary injury to others, and they will be held responsible for the manner in which the right is exercised or duty per-fox-med. It is an exceptional case, where the law does not subordinate personal rights to the preservation of life. A conductor has the right,, under proper circumstances to eject a passenger from a car, but he would not be justified in exercising this right, while the car was at a high rate of speed, or when upon a high trestle, nor would he be justified in putting off a person who was blind and deaf, knowing his infirmity, except at a safe place. Upon like principles the law would not justify a conductor in putting off a passenger at a time and place and under conditions and circumstances which would expose him unnecessarily to great pex-il of life or bodily harm, and this, too, whether the danger arose from the natural infirmity of the pex’son or was self-imposed. If the conductor did not kxiow of the infirmity of the person, and the peril attending the ejection, there would be no liability arising from the exercise of the right and performance of the duty. It is the fact of notice or-knowledge of the danger on the part of the conductor.. under such circumstances that constitutes the act culpable or willful wrong. If the deceased was intoxicated to the degree that he was unconscious of danger, could not grasp his position and surroundings, and his duty to avoid danger from passing trains, or did not possess the power of locomotion, and the place where he was put off and left, was dangerous to one in his condition, and these facts were known to the conductor, the conductor would .be guilty of such negligence as to render the defendant liable for damages, resulting from such misconduct, although the deceased may have been a trespasser on the train, and might have been legally ejected in a proper manner and at a proper place. Mere intoxication which did not take away consciousness, and the power to consider and understand the danger to which he was exposed, nor deprive him of physical capacity to take care of himself, and to avoid danger, would not relieve him from the responsibility of exercising due care, after he was put off the train, and if he was killed in consequence of such neglect of duty on his part, the plaintiff can not recover. The killing under these circumstances would be the result of his own negligence which proximately contributed to it. There is some evidence tending to show that deceased had whiskey with him on the train. If after being put off the train, either from the effects of liquor drank before or after his eviction, he became unconscious and unable to realize his condition and his duty, but was not so at the time of his eviction by the conductor, the defendant would not be liable, for the result of such subsequent intoxication. It would be a case of self-imposed intoxication, not known to the employés of the defendant, and which imposed no duty upon them. The facts are to be ascertained by the jury.

The court did not err in sustaining the objections to the question propounded to Dr. Purdon, as an expert.

The- liability of the defendant is to be determined by the facts of the case, as they were, and appeared to be, to the conductor, in the exercise of reasonable prudence and care as to the condition of deceased at the time he was put off the train. There was no error in sustaining objection to the question to the witness Orr. This witness was asked if deceased was in “a senseless condition,’’whether he“ was stupidly drunk.’ ’ This witness had testified, that he saw deceased in conversation with others but could not hear anything that was said, and that he had no conversation with deceased; that he, witness, occupied a seat in one end of the car, and the deceased on a different side, in the other end. The facts show he was not competent to answer the questions, independent of the form of the question.

Reversed and remanded.