Central of Georgia Railway Co. v. Crane

65 So. 866, 11 Ala. App. 249, 1914 Ala. App. LEXIS 57

• Court: Alabama Court of Appeals
• Decided: May 19, 1914
• Status: Published

Opinion

WALKER, J.

Count “G” of the complaint as amended was the only one upon which, under the rulings of the court, it was permissible for the jury to find in favor of the plaintiff. The negligence charged in that count was that of the agent, servant, or employee of the defendant, whilst engaged in or about the duties of his employment, in failing to notify the plaintiff of the train’s arrival at Vandiver, the station to which she had a ticket, by calling out the name of the station, or otherwise. Evidence introduced by her tended to prove that no such notice was given. The evidence, and the only evidence, of an opposing tendency, on this point was that introduced by the defendant to the effect that the station signal was blown for that station, that the train porter then went through the car in which plaintiff was riding and called that station, and that just before tlie train stopped there the conductor opened the door at the front end of that car and announced the station, the plaintiff at the time occupying the second seat from that end of the car. The court refused to give the following written charges requested by the defendant:

“If you believe from the evidence that the station was called in the usual manner, and the train was brought to a stop at Vandiver, and the plaintiff made no effort to disembark nor manifested any intention of disembarking, then your verdict must be for the defendant.” “If you believe from the evidence that the station was called in the usual manner, then you must return a verdict for the defendant.” “If you believe from the evidence that the station was called in the usual manner, then you cannot find for the plaintiff under count ‘O’ of the complaint as amended.”

The counsel for the appellee criticises these charges by suggesting that they were faulty in failing to hypothesize a giving of notice in a reasonable or proper manner, or in the way prevailing on well-regulated railroads. We are not of opinion that they are subject to such a criticism. An instruction that the jury could not find for the plaintiff under count C if they found from the evidence that the station was called in the usual manner had the effect of denying their right to render such a verdict only in the event they believed from the evidence that such notice was given of the arrival of the train at the station which was the plaintiff’s destination as was in conformity with the established usage or common practice in that regard, such information of that fact as the passenger reasonably may expect to be imparted in the ordinary course of events in railroad travel. This amounts to saying that the notice must have been given in a proper customary way. It is a matter of such common knowledge what that way is that proof of it is not required to entitle the court and jury to take cognizance of it. — 16 Cyc. 877, note 1. A carrier’s duty to a passenger in this regard is performed if the.name of the station which is the passenger’s destination is so announced by a train employee as to give the passenger information of the fact a reasonable time before he is to get off.- — 2 Hutchinson on Carriers (3d Ed.) § 1121. We are of opinion that each of the charges above set out required, as a prerequisite to a verdict unfavorable to the plaintiff, a finding by the jury that that duty .was performed by the defendant. There is an additional support for the conclusion that those charges are not subject to the criticism aimed at them. On the question of notice of the arrival of the train at Vandiver there were but two conflicting phases of evidence. That introduced by the plaintiff tended to' prove that the station was not called at all. The opposing evidence was to the effect that all the notice of the arrival of the train at that station was given which a passenger reasonably could expect. The conflict in the evidence was between no notice at all and a notice the sufficiency of which, if, in fact, it was given as testified to-, was not in reason open to question. If, as the evidence introduced by the defendant tended to- prove, the facts were that after the station signal was blowta as the train approached Vandiver the train porter went through the car in which the plaintiff was calling the name of that station, and just before the train stopped there the conductor opened the door of that car, within a few feet of where the plaintiff was sitting, and announced, the station, a finding that there was a negligent failure .to give notice of the arrival of the train at that station by calling out the name of it, or otherwise, would have been wholly unwarranted. Under the evidence as to notice the issue on that point was whether it was or was not given, not whether it was or was not sufficient, if, in fact, it was given, as one phase of the evidence tended to prove. There was only room under the evidence for one of two findings as to this feature of the case; either that no notice was given or that a sufficient notice was given. A requested instruction on the question of notice of the arrival of the train at the station was not rendered incorrect because of its failure to require a finding on an issue that might arise in some case in which such a question is presented, but which had not been raised by the evidence adduced in the case on trial. Instructions are not subject to criticism because of their failure to deal with issues not raised by the evidence. — 38 Cyc. 1618. The conclusion is that, as applicable to the evidence in the case, the charge above set out were proper ones, and that the court erred in refusing to give them.

Reversed and remanded.