Alabama Midland Railway Co. v. Horn , 132 Ala. 407 ( 1901 )

SHARPE, J.

— By the first count of the complaint on which the case was tried negligence is predicated mainly upon the alleged fact that at the instant plaintiff was thrown by starting of the train, she was attempting to board it as a passenger by invitation of an agent or servant of defendant having authority to extend such invitation. This material averment was not negatived by either of the pleas to which demurrers were sustained. If plaintiff was induced to malee the attempt by defendant’s immediate invitation, defendant was under the duty of holding the train until she could do so safely, and this notwithstanding it may have, as averred in plea B, stopped sufficiently long for her to accomplish that end.—Montgomery & Eufaula R. Co. v. Stewart, 91 Ala. 421; Birmingham Union Railway Co. v. Smith, 90 Ala. 60; Detroit, etc., R. Co. v. Carter, 23 Wis. 152, 99 Am. Dec. 141; Moher v. Central Park, etc., R. R. Co., 69 N. Y. 52. The same principle applies though plaintiff may, as averred in pleas O, D and F, have been attempting to get on without knowledge of the conductor or person in charge of the train. Non constat whether the servant averred to have been acting in this instance was some servant other than the conductor or person in charge of the train, having entrusted to him the duty of receiving and inviting passengers aboard in such way as to bind defendant for negligence in that regard and in respect of starting the train before receiving his signal. For lack of such negation if for no other reason, the special pleas referred to were each subject to the demurrers interposed to them respectively and the court’s action in sustaining those demurrers was free from error.

The judgment will be affirmed.