Whaley v. Louisville & Nashville R. R. , 186 Ala. 72 ( 1914 )

SOMERVILLE, J. —

The complaint is founded upon the allegation that the palintiff entered the defendant’s car for the purpose of assisting an elderly woman who was embarking as a passenger, and that she was injured while on the car for that purpose. ■ The complaint thus charges a quasi relationship between plaintiff and defendant, which devolved upon defendant the duty of exercising ordinary and reasonable care not to injure plaintiff, including the obligation to allow her a reasonable opportunity to safely alight, if her intention to do so was known to defendant’s trainmen.—Southern Ry. Co. v. Patterson, 148 Ala. 77, 41 South. 964, 121 Am. St. Rep. 30; L. R., etc., Ry. Co. v. Lawton, 55 Ark 428, 18 S. W. 543, 15 L. R. A. 434, 29 Am. St. Rep. 48, and note; Ill. Cent. R. R. Co. v. O’Keefe, 168 Ill. 115, 48 N. E. 294, 39 L. R. A. 148, 61 Am. St. Rep. 97, and note; Wickert v. Wis. Cent. R. Co., 142 Wis. 375, 125 N. W. 943, 20 Ann. Cas. 452, and note; The City of Seattle, 150 Fed. Cas. 159, and note.

But the evidence offered in support of the complaint shows clearly and conclusively that plaintiff did not enter defendant’s car for the purpose of assisting her aunt, but only for the purpose of talking to her and keeping her company until the departure of the train. In such a case, although a visitor’s presence be suffered without objection, the carrier is under no duty to look out for her safety. She is a trespasser, or at best a bare licensee, and the only obligation the law imposes upon the carrier is to use due care to avoid injuring her when its trainmen discover that she is in a place of peril. In short, the carrier’s liability must be grounded on willful or wanton injury.—McElvane v. C. of G. Ry. Co., 170 Ala. 525, 54 South. 489, 34 L. R. A. (N. S.) 715; Arkansas, etc., R. Co. v. Sain, 90 Ark. 278, 119 S. W. 659, 22 L. R. A. (N. S.) 910; Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 South. 111, 64 A. & E. R. R. Cas. 141

It therefore appears that there is a radical variance between the case counted on in the complaint and the evidence offered in support of it; and, the rights and obligations of the parties being altogether different in the two cases, the variance must be regarded as material and fatal, and the trial court did not err in instructing the jury to find for the defendant.—A. G. S. R. R. Co. v. McWhorter, 156 Ala. 269, 47 South. 84; B. R., L. & P. Co. v. Lide, 177 Ala. 400, 58 South. 990; Maxie v. S. S. S. & I. Co., 181 Ala. 548, 61 South. 269.

It may be added that, even with an apt complaint, no phase of the evidence could have supplied the necessary inference of willful or wanton misconduct on the part of any of defendant’s trainmen with respect to plaintiff’s mishap; for, had the flagman seen plaintiff in the act of alighting (and the evidence does not support the claim that he did), there was nothing whatever to suggest to him that she was in danger of being hurt; and even had he apprehended danger to her, it does not appear that he had time thereafter to signal the engineer and stop the movement of the train.

Appellant’s argument and citations of authority are applicable to' the case made by the complaint, but have no bearing upon the case actualy made by the evidence.

Affirmed.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.