Dilburn v. L. & N. R. R. , 156 Ala. 228 ( 1908 )

SIMPSON, J.

This suit Avas brought by the appellant against the appellee for damages for the death of plaintiff’s intestate, S. G. Dilburn, who' was hilled in attempting to alight from defendant’s train. The counts of the complaint on which the case was submitted to the jury were counts 1, 2, and 4. Counts 1, and 4 simply charge, in general terms, that intestate’s death was caused by negligence. The second count, as amended, charges that defendant’s servants, AAthile acting within the scope of their employment, “willfully, wantonly, and intentionally caused plaintiff’s intestate, who was a passenger in the act of alighting, * * * to he run over by said train and hilled.” There is no controversy about the fact that said intestate Avas hilled by being run over by a train of defendant at a station called Wallace on defendant’s line of road. There is no evidence to support the charge of willfulness and wantonness, and it is not claimed; so it is not necessary to consider that count. ' :

. The court gave the general charge in favor of the defendant, and it is insisted by the appellee that said charge was properly given, and that consequently it is • unnecessary to consider the other assignments of error insisted, on by the appellant. Pleas alleging contributory negligence were filed, the gist of which is that although a stop of sufficient length was made at Wallace (the station to which intestate was traveling), yet said intestate waited until after the cars had started, and attempted to light, holding a sack, with various articles in it, in his right hand, and holding onto the railing, and placing one leg across the other. According to the different witnesses, the train stopped at Wallace from about five or six seconds to one, one and a half, two, and five minutes. The body of intestate was found on the track about one, two, or three car lengths from the place where the car came to a stop, or about 60 feet, and the train moved off slowly.

One witness testified that he was about 8 feet from the car when it stopped; that he saw intestate standing on the step of the car, holding by the hand rail; that when the train started there was a jerk, and “it jerked him around between the cars and the rails.. I saw him swing around. He was on the ground, on the ties on the ground, and the wheels had run over him”; that the car ran about 5 feet after starting before intestate was jerked off; that when he saw intestate standing on the steps he was about as far as across the house from him. This witness stated, further, that he did not see intestate when he fell, but saw him on the ground after he had fallen; that the car stopped about five or six seconds; that intestate had a sack in his right hand, with oranges, bananas, and two bottles of whisky in it. This witness was 14 years of age. Another witness testified that he saw intestate coming down the car step as the car was moving off, going about as fast as a slow walk, having a sack in one hand and holding on the railing 'with'the other; that he either fell from the step or stepped off; that before he got off witness saw Watkins, the flagman, with his hand on intestate, telling him not to step off, bnt that they would stop the train; that witness was within arm’s length of the flagman, and saw him standing on the platform fronting intestate, putting up his hand, and telling intestate “not to step, that they would stop the train, bnt he stepped anyway.” Another witness, who was a passenger, testified that when the conductor called “All out for Wallace” he saw intestate gathering his bundles to go out; that witness got up and went to the door, and when he got to the door the intestate was coming out of the door of the car just ahead of witness, and started to go on down the steps. “He sorter slacked up, got his bundles fixed, and taken hold of the iron, and made a step one way or the other, and that is the last I seen of him; went under the train some way.” This witness went on to state that the train stopped long enough for people to' get on and off; that he could not say where intestate was when the train started off. It was gradually moving when he started off. Witness did not see any one trying to prevent intestate from getting off; but some one rang the bell. He could not say whether it was before or after the car started that the bell rang.

The conductor then testified as to his.experience as a conductor since 1889; that he made the usual announcements before and at the time of reaching Wallace ; that the train stopped from a minute to a minute and a half, which was the usual time for stopping there; that several persons got on the car at Wallace, and some of them not off ana in, but intestate was the only passenger for Wallace; that he saw intestate just before reach-inn Wallace, when tbe station was announced, bnt did not see him ana in until after he had been run over; that there was baggage and express taken off at Wallace; that when the cars stopped witness went out on the station platform and called out twice. “All ont for Wallace,” then went into the smoker, where he had last seen intestate, and, not finding him there, went on into the next car, and was told that intestate had gotten off; that he then started the train. The flagman testified that the train stopped two or three minutes; that he saw intestate coming down the steps, after the train had been put in motion, and told him to wait a minute, and not to get off the train — they would stop the train; caught hold of his coat to keep him from getting off, and told s'ome one, standing on the platform, to pull the bell cord, and some one did pull it, but intestate stepped down; that the station platform was about 6 inches lower than the car steps, and the cars had moved about 40 feet when the intestate stepped off. Another witness, a citizen, testified to seeing the flagman put his hand on the intestate and ask him not to get off, that he would stop the train, and hearing the flagman call to some one to pull the bell cord, and to seeing intestate step off in the direction opposite to that in which the train was moving.

These were all of the witnesses who saw the accident. The evidence is not without conflict as to whether the interstate was on the step, preparing to alight, and fell off, or was in the act of stepping off, when he fell under the wheels of the car. There is a conflict in the testimony as to just how long the train stopped. It was the duty of the conductor to stop the train long enough for the intestate to move from his seat to the platform and alight, and it was a question for the jury to determine, from the evidence, whether sufficient time was given the intestate to alight, whether he was proceeding with ordinary prudence to reach the step, or was in the act of stepping, and whether there was such a jerk as to constitute negligence. It was for the jury to determine, also, from the evidence, whether it was contributory negligence for the intestate to attempt to alight while the cars were in motion, which would depend upon rhe speed at which the train was running, the condition of the intestate, as to being incumbered with baggage, etc.— Central, etc., Co. v. Miles, 88 Ala. 256, 262, 263, 6 South. 696; K. C. M. & B. R. R. Co. v. Matthews, 142 Ala. 298, 39 South. 207, 211. It was error, therefore, in the court to give the general charge in favor of the defendant.

The first and second assignments of error are to the ruling of the court in overruling plaintiff’s demurrer to plea No. 2 to counts 1 and 4 of the complaint. These counts charge negligence generally, and the substance of pleas 2 and 4 is that plaintiff was guilty of contributory negligence “by stepping off of a moving train and holding on the railing thereof.” This court has frequently held that it is not negligence per se to step from a moving train. That depends upon the speed of the the train and other circumstances, such as the age and strength of the party, whether he was incumbered with baggage,, etc. — K. C. M. & B. R. R. Co. v. Matthews, 142 Ala. 298, 39 South. 207. The same may be said as to holding onto the rail. If the train is moving slowly, and the station platform is on a level with the car, it might he wise to hold onto the rail until the passenger had adapted his gate to the speed of the train. Consequently these assignments are well taken.

For like reasons the court erred in overruling plaintiff’s demurrer to the defendant’s plea No. 3.

For like reasons, also, the court erred in overruling the demurrer to plea No. 4; and, in addition, said plea does not allege that the intestate had any notice of the fact that the train had reached the station — Wallace.

The mistaké in the record, in using the word “defendant” where it should be “plaintiff,” is self-correcting, as the demurrers were to pleas filed by the defendant.

There was no error in the court sustaining the objection of the defendant to the question to the witness, J. S. Dilburn, “Was he disabled in the War?” It was not proper to ask how he was disabled,, and he may have been disabled during the War and entirely recovered therefrom.

If there was error in sustaining the objection to the question to the witness Dr. Tippins, “By the wheels?” it was without injury, as the question was answered, and the only objection was to the question; no motion being made to exclude the answer.

There was no error in the court’s sustaining- objections to the questions by the plaintiff to his own witness, Dr. Tippins, seeking to test the accuracy of his judgment as to how long the train stopped, by holding the watch on him. The witness had testified, according to the best of his judgment, how long the train stopped; and this was an evident effort to impeach the accuracy of his statement by the party who had introduced him. This is not the proper way to test the accuracy of the statement or the recollection of the witness.

For the same reason there was no error in sustaining the objection to the questions by plaintiff to the same witness: “How far could you have walked from the time the train stopped until Dr. Dilburn was killed?” and “Could you or not have walked 50 yards from the time the train came to a full stop up until he was killed?” As a further reason, the time of the stopping of the train is not the question inquired about in these questions.

The court erred in sustaining the objection to the question to the witness Owens, “How long had he lived that near the depot?” The fact that the deceased had lived within 200 yards of the depot for a long or short time would have a tendency to throw some light on the question as to whether he was familliar with the place where he attempted to alight, and that would have some bearing on the point as to whether it was negligent in Mm to make the attempt. — K. C. M. & B. R. R. Co. v. Matthews, 142 Ala. 298, 39 South, 208, 212 (second column).

The court erred in excluding the answers of the witness Owens, “He seemed to be very feeble,” and “He seemed to be crippled.” — Thornton v. State, 113 Ala. 43, 46, 47, 21 South. 356, 59 Am. St. Rep. 97.

There was no error in sustaining the objection to the question to the witness Thompson, “How long is it the custom of that passenger car to stop?” etc. This was irrelevant. If the train stopped for a sufficient length of time for the plaintiff, in his known condition, to get off, it matters not what had been its previous custom.

There was no error in sustaining the objection to the questions as to the conversations by the conductor, the night after the accident, as to- what occurred. The only purpose that could be served by proving what the conductor said would be to impeach his testimony, and no predicate had been laid. The conductor had not testified at all when these questions were asked.

There was no- error in overruling the objection to the question to Jennings, the conductor, as to whether a minute, or a minute and a half, was a sufficiently reasonable time for passengers to alight. The witness was experienced and competent to testify on this subject.

There wás no error in the court’s sustaining the objections to the questions to the witness Watkins “to-tell what.three minutes are,” etc.; the counsel holding his watch in order to- test the accuracy of the answers. In addition to the fact that it is a matter which rests in the discretion of the trial judge as to how far he will allow cross-examination on irrelevant matters, in order to test the accuracy of the witness’ testimony (5 Mayfield’s Dig. p. 978, § 117), any test allowed should be so made that the jury can judge of the accuracy of the answers, which they could not do, by the watch being-held in the hand of counsel and observable only by him.

There was no error in sustaining the objection to the question to the witness Watkins, “When it is in that position, just turned, and you start it off, and put the steam to it, don’t that create a jerk in the train?” The witness is not shown to be an expert in managing an engine or running a train. Besides, it is impossible to say, from what preceded, just what state of affairs is referred to.

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

Reversed and remanded.

Tyson, C. J., and Dowdell and Denson, JJ., concur.