Citation Numbers: 183 Ala. 203, 62 So. 710
Judges: Crowe, Dowdell, Hon, Remanded, Sayre
Filed Date: 6/19/1913
Status: Precedential
Modified Date: 7/27/2022
— Appellee sued as a passenger for damages for that defendant carried her beyond her agreed stopping place. The complaint averred that the defendant “negligently failed or refused to stop said train at Graces a sufficient length of time for the plaintiff to alight while the train was not in motion.” Defendant demurred to the complaint as exacting too much of it. It is said that there should have been an averment that plaintiff had not time to alight, using reasonable diligence. We think the pleading fairly and sufficiently warned defendant of the cause and character of the complaint it was called upon to answer. Defendant negligently failed or refused to allow plaintiff a sufficient time to alight. The rule is to construe pleadings against the pleader on demurrer, but that is a reasonable rule and does not allow strained constructions in order that a pleading be condemned. It does not require us to treat the complaint in this case as laying upon defendant the duty to hold its train at its stopping place while plaintiff slept, chatted with other passengers, or loitered on the way, before exercising herself to get off. It is no erroneous statement to say that a carrier’s duty is to stop its train long enough for passengers to get off at their agreed stopping places. That length of time may in cases depend upon peculiar circumstances, but in general it is such as passengers, using reasonable diligence, require. Great generality is allowed in the statement of negligence as a cause of action. It was not necessary for the plaintiff to characterize her own conduct, but that of defendant, and
Plaintiff’s husband was traveling with her and testified for her. His testimony was that the train made a very short stop and that, owing to the aisle of the car being crowded, he was unable to get his wife, child, and luggage off the train. He was allowed to testify, over defendant’s objection, that when he found the flagman a few minutes after the train had moved away from the station the following conversation passed between them: “I asked him why he did not stop the train long enough for me to get off, and he said he did, and I told him we did not have time to get off, and I asked him then to back the train so we could get off, and he said he did not have time.” This was not of the res gestae of the negligence complained of, was a narrative by the par-, ties to the conversation, and from their respective viewpoints of a transaction then past was hearsay and should not have been allowed. Defendant’s motion to exclude should have been granted. — Mobile Company v. Baker, 158 Ala. 495, 48 South. 119, and cases cited. Nor do we think, on reconsideration, that the judgment can be saved from reversal on the ground that this ruling
Proof that defendant was accustomed to put a step on the ground at plaintiff’s station in order to assist passengers in alighting, in connection with proof that on the occasion in question observance of the rule or custom was omitted, would tend in some slight degree to confirm plaintiff’s theory of undue haste in the operation of the train. At any rate, the court’s subsequent action took this evidence out of the case, and error cannot be predicated of its admission.
The court in its oral charge said to the jury, in connection with an approved definition of negligence: “You would have to believe from the averments of this [meaning the complaint] that the defendant company negligently failed to stop long enough for the plaintiff to get off in safety.” Defendant excepted. In connection with an assignment of error based upon this exception the argument as to the demurrer to the complaint is repeated. It may be that the excerpt from the charge does not contain a comprehensive statement of the law of the case. No doubt further definition of defendant’s