McElvane v. Central of Ga. R. R. Co. , 170 Ala. 525 ( 1911 )

DOWDELL, C. J.

The plaintiff, appellant here, sues to recover damages for injuries sustained while attempting to alight from a moving train of the defendant. The complaint as originally filed contained three counts, to which was added a fourth count by way of amendment. To each of these counts a demurrer was interposed by the defendant and sustained by the court, and, upon failure of the plaintiff to plead further, a judgment was rendered in favor of the defendant, and from which the present appeal is prosecuted.

At the time of plaintiff’s injury he was confessedly not a passenger, nor was he assisting a passenger in getting on or off of defendant’s train. He boarded the train while it was making its usual stop at the station for the purpose of letting passengers on and off, on his own private business, viz., to collect a debt owing to him from one who was a passenger on said train. The question is: What duty, in such a case, did the defendant carrier owe to the plaintiff?

It is insisted in argument by counsel for appellant that the case comes within the principle applied to one assisting a passenger on or off the train. To this we cannot assent. The conditions and circumstances are different, and the insistence is unsupported by sound reasoning. In the one instance, namely, that of assisting a passenger, the party assisting is performing a duty that the carrier may owe to the passenger in special cases, and, when so done with the knoivlodge of the carrier’s servants or agents whose duty it is to assist passengers in getting on or off the train, the presumption is that it is done with the carrier’s approval, and from this springs the doctrine of applying the same rule of care on the part of the. carrier to the assisting party as to the passenger. In the cáse of Central of Georgia Railway Company v. Letcher, 69 Ala. 106, 44 Am. Rep. 505, cited and relied on as an authority for appellant’s contention, the facts show that the plaintiff was assisting a lady boarding the train as a passenger, and such, also, were the facts in the cited case of Southern Railway Co. v. Patterson, 148 Ala. 77, 41 South. 964, 121 Am. St. Rep. 30. Nothing is said in either of these cases in support of appellant’s insistence here. On the contrary, the reasoning seems opposed to appellant’s views. We know of no case like the one before us ever having been decided by this court; indeed, counsel in argument say that after diligent search they have been unable to find any, and that the precise question has never before been passed upon by us.

Under the facts averred in the complaint, the plaintiff can but be regarded as a trespasser, and as such the duty of the carrier to him was not to willfully or wantonly injure him, or to negligently injure him after discovery of peril. There is no pretense that the injury complained of was willfully or ivantonly inflicted, nor is it shown by the complaint that the alleged injury was the proximate consequence of any negligence on the part of the defendant after discovery of plaintiff’s peril. It is averred in one of the counts of the complaint that while the plaintiff was in the act of alighting, and when the train was moving at not more than two or three miles an hour, “the said train made a violent and sudden lunge, and while still in the yard and while within a few hundred feet of the depot in said town of Hartford began running at the high and unlawful rate of speed of not less than fifteen miles an hour, and by reason of said lunge or sudden jerk and beginning of the running of said high rate and unlawful speed plaintiff was tripped or thrown from the steps of said train,” etc.

The count concludes as follows: “Plaintiff avers that the injuries complained of in this court were the direct and proximate result of the engineer in charge of the engine by instantly putting or instantly beginning to run said train at a high and unlawful rate of speed.” It is not averred that the engineer had any knowledge of the plaintiff’s act of alighting from the train at the time of the alleged instant increase of speed. In the absence of a knowledge of plaintiff’s peril in attempting to alight from the train, the facts alleged would not constitute negligence. The averment that 15 miles an hour was an unlawful speed without any facts being stated to show what constituted that rate of speed unlawful is hut an opinion of the pleader. The conductor had no right or authority to prevent the plaintiff from alighting from the train while the same was moving at the rate of turn miles an hour, and consequently the count predicating a recovery on the charge of the failure of the conductor to prevent the plaintiff from alighting from the train states no cause of action. .

In another count of the complaint the failure to ring the bell or blow the whistle before leaving the station is alleged. This was in violation of the statute.—Code 1907, § 5473. This in itself was negligence (M. & C. R. R. Co. v. Copeland, 61 Ala. 376; C. of G. Ry. v. Letcher, supra); but was the injury complained of the direct and proximate result of this negligence? In the case of Central of Georgia Railway Co. v. Letcher, supra, it was said: “The only injury which could have resulted to the plaintiff from the neglect to give the signals was the inconvenience of being carried from his home, the loss of time, and the labor or expense of returning. These were the immediate, direct consequences of the neglect. To avoid them he was not justified in putting in jeopardy life or limb; and if he should, and other injury result, the compensation he can rightfully demand is not increased.” The plaintiff not being a passenger, and not being on the train by any invitation of the defendant, the defendant was under no duty, after the train was leaving the station, to stop for the plaintiff to get off; and, owing him no greater duty than not to willfully or wantonly injure him, our conclusion is that the court committed no error in sustaining the demurrer.

Affirmed.

Andeeson, Sayre, and Somerville, • JJ., concur.