Citation Numbers: 7 Ala. App. 521, 60 So. 988
Judges: Thomas
Filed Date: 1/21/1913
Status: Precedential
Modified Date: 7/19/2022
This was an action by the passenger against the carrier, a street railway company, for an alleged breach of duty in carrying the passenger beyond her destination. There are but two counts in the com-
A demurrer was interposed to each count, raising, in varying phraseology, the point that the complaint fails to show that the defendant was under duty to the plaintiff to stop the car at the station alleged. ' We are of opinion that the lower court properly overruled this demurrer, for the complaint alleges, in substance, in this particular that: “Plaintiff became and was the defendant’s passenger ón one of its street cars on the line of its street railway, known as the Boyles line, to a station on said line, to-wit, Canal Station, and paid defendant the fare charged, five cents, for carrying-plaintiff on said car to said station.” These were allegations of facts and not of conclusions, clearly showing the relationship of carrier and passenger between plaintiff and defendant, and that plaintiff was such passenger to Canal Station, and that defendant contracted to carry her there on the car on which she was such passenger. From these facts, there arose in law the duty on defendant, not alone to transport the plaintiff safely while she was. such passenger, but to carry her to. and stop at the station named, and stop, too, sufficiently long to allow plaintiff reasonable opportunity to alight from the car with safety.
It was certainly not incumbent upon plaintiff to show in the complaint the mere matters of evidence, upon which she expected to rely in establishing the facts alleged. To sustain the'allegations of the complaint we have recited, it would be necessary for plaintiff to prove, of .course, in addition to. the payment of . the fare mentioned, that Canal Station was a regular-station or stopping place for the car she was on, or that it was a flag
There is b.ut one difference between the contract of a railroad company to carry a passenger to a particular station on its line and that of a street car company to do so, and that difference is that the former is always an express contract, while the latter is usually an implied one. The railroad company bases its charges for carrying on mileage, hence must know in advance the passenger’s destination, so as to collect the proper fare. This done, the person is a passenger by express agreement to the station to which he has paid mileage. On the other hand, the street car company usually charges a flat fare, which the passenger pays, often without ever informing the conductor of the destination which he has in mind; yet he is nevertheless a passenger to such destination, by implied agreement, resulting from custom, provided that destination is a station at which the car he is on makes regular stops, or will stop upon request, and he makes seasonable request. These are matters of evidence, however, and not of averment.
The case of Cook v. Southern Ry. Co., 153 Ala. 121, 45 South. 156, cited by appellant, does not conflict with our views of the sufficiency of the complaint here. If that complaint had alleged what this one practically does — that plaintiff paid the fare charged by defendant for carrying plaintiff “on said car [the one on which she was a passenger] to said station” — we doubt not our Supreme Court would have held this sufficient to show a duty to stop that car at that station.
Charge 1 seeks to prevent the recovery of any damages for being carried by Canal Street Station on the return trip, endeavoring thereby to limit the damages, if any are recovered, to those sustained as a result of being carried by said station when the car was going out. The undisputed evidence shows that the passage was a continuous one, and under the same contract with the carrier, from the time she was first carried by Canal Station on the outgoing trip to the time she was carried by said station on the return trip, and until she was finally landed beyond said station. The complaint is predicated upon a breach of duty, arising under this single contract, to put plaintiff off at Canal Station; and, so long as she was retained as a passenger under the contract, the duty continued to put her off there, and defendant is liable for such damages as the passenger sustained as a proximate result of the breach of such duty, from the time Avhen it should have put her off under that contract to the time it did put her off under that contract, as well as for such damages as she sustained as the proximate result of being finally landed beyond her destination in complete breach of that same contract. The charge, we think, was, therefore, properly refused.
Charge 2 presents practically the same question as charge 3, and the two may be considered together; each attempting, in a different way, to avoid the recovery of punitive damages. If the evidence introduced by the plaintiff is to be believed — and this was a question for the jury, which the charges mentioned would have withdrawn from them — there were facts and circumstances
The following charge: “If yon believe from the evidence that plaintiff Avas carried by Canal street, you cannot award the plaintiff any damage on account of the fact, if it be a fact, that she was not met by her mother as soon as she would have been if she had gotten off at Canal street” — Avas probably a proper charge under the authority of L. & N. R. R. Co. v. Quick, 125 Ala. 560, 28 South. 14, provided there was no evidence at all of the fact or any from which it could be inferred that the conductor knew of the habit of plaintiff’s mother of meeting her and of her meeting her that night. The court, after carefully going through the entire record in consultation, are of opinion that there is sufficient eAddence in the record to have prevented the lower court from withdrawing this question of the conductor’s knowledge from the jury, and that the charge, in the shape requested, was properly refused.
The objection by defendant to the question propounded to the plaintiff, assigned as the second ground of error, was properly overruled. It sought to elicit evidence tending to establish the conductor’s knowledge of the fact that plaintiff’s mother met her.
We have discussed all the assignments of error, and the case is affirmed.
Affirmed.