Birmingham Ry. L. & P. Co. v. Dickerson , 154 Ala. 523 ( 1908 )

ANDERSON, J.

As a general rule alighting from a moving car is not necessarily negligence per se. There may be exceptional circumstances attending the attempt thus to alight, such as the great speed of the train, the age or infirmity of the passenger, or his being incumbered with bundles or children, or other facts, which render the attempt so obviously dangerous that the court may, where the testimony is undisputed, declare as matter of law that the passenger’s conduct was reckless and negligent. — Hunter v. L. & N. R. R., 150 Ala. 594, 43 South. 802, 9 L. R. A. (N. S.) 848; Watkins v. Birmingham Elec. Ry. Co., 120 Ala. 152, 24 South. 392, 43 L. R A. 297; K. C., M. & B. R. R. v. Matthews, 142 Ala. 298, 39 South. 207; Sweet v. B. R. & E. Co., 136 Ala. 166, 33 South. 886; Nellis, St. R. R. Accident Law, p. 190. In the Hunter Case, supra, this court held that the plaintiff was guilty of negligence as matter of law in alighting from the train in the night-time, and Avhich Avas going at a rate of from six to ten miles per hour. It AA-as also held negligence per se in the case of Birmingham R., L. & P. Co. v. Glover, 142 Ala. 492; 38 South. 836, for the plaintiff to have alighted from a car, by stepping in the opposite direction from- which the car was going, and which, as shown by some of the evidence, was going at the rate of five or six miles per hour. Of course, a person might be guilty of negligence per se in stepping off a moving car in an opposite direction from which it was going, when he would not be if stepping in the direction it was going, and when going at the same rate of speed. But it cannot be said to be negligence as matter of law to step off a slowly moving car, even if the party steps in an opposite direction from which it was going.

The fourth plea does not aver that the car was going at a rapid or dangerous rate of speed, nor does it aver the rate of speed. Non constat, it may have been going extremely slow, barely moving; and, if referable to the first count of the complaint, the defect is not cured, as the complaint does not aver the rate of speed or whether slow or fast. It avers that the car “was started with a sudden jerk, or the speed thereof was suddenly increased.” There could have been a sudden jerk, or an increase in speed, and yet the car may have been going so slow as to authorize one to step therefrom in any direction without being guilty of negligence. The case of Glover v. Birmngham R., L. & P. Co., supra, is unlike the case at bar. There some of the evidence showed that the car was going from five to six miles per hour, and the court held that it was negligence as matter of law for the plaintiff to have stepped off backwards, or with his face to the rear óf the car, if the car was going that fast. Here we have nothing in the plea to indicate that the car was going at such a rate of speed as to render the plaintiff guilty of negligence in stepping off of same in any direction. The trial court did not err in sustaining the demurrer to the fourth plea.

The judgment of the city court is affirmed.

Tyson, O. J., and Dowdell and McClellan, JJ., concur.