Central of Georgia Ry. Co. v. Campbell , 10 Ala. App. 288 ( 1914 )

THOMAS, J.

-The case ivas tried on counts 1 and 2 of the complaint, Avhich fully state the facts, and to which demurrers Avere overruled, the action of the court in doing which is uoav assigned as error. We deem it unnecessary to discuss the points raised by the demurrers ; since a mere reading of the counts mentioned Avill show that each sets forth a good cause of action when considered in the light of the following cases, where every proposition of law contended for by appellant was settled adversely to it, after a most thorough discussion by our Supreme Court covering every phase of the legal, principles here applicable. — A. G. S. R. R. Co. v. Godfrey, 156 Ala. 202, 47 South. 185, 130 Am. St. Rep. 76 M. & E. Ry. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72; Watson v. East Tenn., etc., Ry Co., 92 Ala. 320, 8 South. 770.

Special pleas 5 and 6, to which demurrers were sustained, present nothing more than the general issue, and there was no injury, if error, in sustaining plaintiff’s demurrers to them. All the facts alleged in them were provable under the plea of the general issue, which was on file. The defendant also assigns as error the sustaining by the court of demurrers to its pleas numbered 2, 2y2 and 3. The judgment entry in this particular recites: “The demurrers of the plaintiff to defendant’s pleas having been heard and considered by the court, it is ordered and adjudged that said demurrers be and they are hereby sustained as to pleas numbered 2, 2y2, and 3. * * * The demurrers of the plaintiff to the defendant’s amended pleas having been heard and considered by the court, it is ordered and adjudged that said demurrers be and they are hereby overruled as to amended pleas numbered 2, 2y2, and 3.” In the record we find only one plea bearing the number 2, only one bearing the number 2y2, and only one bearing the number 3. Whether they are copied and .appear in the record in the form in which they were originally filed qr in the fqrm as subsequently amended, we are unable tq determine; since there is no record whatever of any amendment and no reference anywhere to the amendment of defendant’s pleas, except in the judgment- entry which we have quoted. We assume therefore that the amendment to the pleas named was not made by a separate paper writing, but only by interlineations in the original pleas themselves. As the copy in the record does not show what the interlineations, if any, were, there is no way for us to tell whether the pleas named as there found are in their original or amended form; and hence we are unable to pass upon'the question as to whether the court erred in sustaining the demurrers to them in their original form — the demurrers to them in their amended form having, as shown, been overruled.

The foregoing disposes of the first, second, and third assignments of error. The fourth to the fourteenth, inclusive, and the seventeenth assignments — all predicated on objections to evidence — are not insisted upon in brief, and will not, therefore, be considered. — Zavello v. Leitchtman, 171 Ala. 68, 54 South. 537. The questions raised in the fifteenth and sixteenth assignments were decided adversely to appellant in the case of Central of Ga. Ry. Co. v. Mathis, 9 Ala. App. 643, 64 South. 197. There was no error in permitting plaintiff to state that his side was injured or hurt him badly.— C. of Ga. Ry. Co. v. Clements, 2 Ala. App. 523, 524, 57 South. 52.

It is the duty of the carrier to provide safe and convenient stations, and means of ingress to and egress from its cars; and if a person has the bona fide intention of taking passage by a train, and goes to a station at a reasonable time, he is entitled to protection in this respect from the moment he enters the carrier’s premises.- — North Bir. Ry. Co. v. Liddicoat, 99 Ala. 549, 13 South. 18; L. & N. R. R. Co. v. Glasgow, 179 Ala. 257, 60 South. 103; Fremont, etc., R. Co. v. Hagblad, 72 Neb. 773, 101 N. W. 1033, 106 N. W. 1041, 4 L. R. A. (N. S. ) 254, 9 Ann. Oas. 1099. The present action is predicated upon the alleged negligence of the carrier in failing to light a walkway, on its premises, consisting of a flight of steps, leading from the street at the village of Coffee Springs down a high embankment to the carrier’s station, and over which passengers were invited to go in reaching the station. The night being dark and the steps being unlighted, the plaintiff, in attempting to go down them, while en route to the station for the purpose of taking the train, fell down the embankment, receiving the injuries complained of. The plaintiff testified that this was about ten minute before the scheduled arrival of the night train upon which he intended to take passage, and that at that time neither the station nor the steps nor other parts of defendant’s premises were lighted; but a witness for the defendant testified that it seemed to him that the accident happened about an hour before the time the train was due.

The defendant was not under duty to plaintiff, as a passenger, to keep its premises lighted at all times of the night, but only at such times as intended passengers were invited and reasonably expected to be there; that 'is, a reasonable time before the scheduled arrival of its trains, which may be different at different stations, and is dependent in each case upon a variety of circumstances. As to what was such reasonable time in the present case was a mixed question of law and fact, and we are consequently of opinion that the court should have given charges 30 and 31 requested by defendant. — Murrell v. Whiting, 32 Ala. 55; 23 Am. & Eng. Ency. Law, 585. The appellee urges that this error was without injury because it appears without conflict in the evidence that the steps mentioned were not lighted at all that night. Such a position is so clearly untenable as not to require discussion. If there was no duty resting on appellant to have had the steps lighted at the time of the injury, then the appellee, injured in consequence of their not being lighted, has no cause of action, notwithstanding he would have had a cause of action if the injury had happened later when that duty did exist and as a result of its breach.

What we have said sufficiently disposes of all other questions in the case.

For the error pointed out, the judgment is reversed.

Reversed and remanded.