Southern Ry. Co. v. Johnson , 144 Ala. 361 ( 1905 )

SIMPSON, J.

In this case the evidence produced by the plaintiff himself shows that the plaintiff remained in a saloon, not connected with the railroad depot, or waiting-rooms, until the train had started.and was running from one to three miles per hour, (according to the statement of different witnesses) and then ran, took hold of the railing of the caboose, but fell. The only evidence of anything in regard' to the movement of the train which might have caused the fall of plaintiff, was his statement that when he undertook to take hold of the other railing, with his left hand “It gave a sudden jerk and threw me back. They were putting on more steam or something like that. It went faster, when it gave that sudden jerk and jerked my left hand loose. It swung me around behind the -train and I fell.”

. In the first place there was no proof that the jerk was anything more than what ivas proper and necessary in the movement of the train, but on the contrary the plaintiff himself states that “They were putting on more steam or something like that,” which was evidently the proper thing to do in moving the train.

In the next place the relation of passenger had never been established and the defendant was not under any special obligation to the plaintiff. Even if the casual conversation in the saloon, between plaintiff and the conductor, could have been understood as an agreement to receive plaintiff as a passenger, which it was not, it could only mean that he would be received when he boarded the train in a proper manner, and could not- authorize him to remain in the saloon until after the train had started and then run and attempt to board it while it was in motion. There is nothing in the evidence to show that any invitation was extended to him to board the train at this time, or even that anyone in charge of the train had any knowledge of the fact, that he was attempting to board it. -Even if it were proved, which it was not, that it was customary for the caboose to- be pulled up to the platform for passengers to- get on, while a failure to do- so might, under some circumstances, give a passenger avIio urns left a right of action, yet it could not justify the action of the plaintiff in this case. — Jones v. B. & M. R. 163 Mass. 245 and note; Merrill v. Eastern R., (139 Mass. 238), 52 Am. Rep. 705; Spangle v. C. & A. R. R. Co., 31 Ill. App. 460; Schepers v. Union Depot Ry. Co., 126 Mo. 665, 672, 674; McMurtry v. L. N. O. & T. Ry., 67 Miss. 601; Webster v. Fitchburg R. R., 161 Mass. 198; Browne v. Railroad, 108 N. C. 34, 43; McLaren v. Ala. Mid. Ry., 100 Ala. 506; N. Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545, 552.

It results that the court erred in refusing to give the general charge in favor of the defendant, on written request.

The judgment of the court- is reversed and the cause remanded.

McClellan, C. J., Tyson and Anderson, JJ.,. concurring.