Montgomery Street Railway Co. v. Mason

133 Ala. 508

Opinion

DOWDELL, J.

The appellee sued the appellant, the Montgomery Street Bailway, to recover damages for injuries received by him as a passenger on one of the appellant’s cars, in alighting from the car, caused by appellant’s negligence. The plaintiff recovered a judgment in the court below, and from this judgment the present appeal is prosecuted.

There are numerous assignments of error, in all, fifty-five. Some of these assignments are, however, not insisted on in argument, and such as are not insisted on, wall not he considered. The first seven relate to the rulings of the court on motions of the defendant; the appellant here, to strike certain parts of the complaint as being immaterial averments, and merely surplusage. After the action by the court overruling the motions to strike, the plaintiff amended the first and second counts of the complaint by striking out the vmrds, “light, means, and facilities,” to which the motions to strike wrere in part directed. With the complaint as thus amended no injury resulted to the defendant in overruling the motions to strike. If it be conceded that there 'was error, still we are unable to see that the defendant wras in any way prejudiced, and unless it affirmatively appears that the refusal of the court to strike immaterial and irrelevant averments results prejudicially, such refusal does not constitute reversible error. Columbus & Western R'y Co. v. Bridges, 86 Ala. 448.

The 8th, 9th and 10th assignments of error relate to the overruling of the defendant’s demurrer to the complaint, and the questions raised by these assignments that are insisted on in argument, are also raised by charges requested by the defendant, and which wmre refused by the court. These embrace the vital points in the case, and as they were argued together by counsel for appellant, will in like manner be considered together here.

The gist of the action is in the alleged negligence of the defendant in stopping its car, upon which plaintiff was riding as a passenger, in an unsafe and dangerous place for him to disembark, and while so disembarking or immediately upon alighting from said car, received the injuries alleged in the complaint. The complaint in this respect sufficiently states a cause of action. It was not incumbent on the plaintiff in his pleading to aver in connection with the duty of the defendant to provide a safe place for his alighting from the car, to aver what should constitute a safe place, nor to undertake a minute description of the place where the stop was made, and the alleged injury received. After averring the duty of the defendant to provide a safe landing place for the plaintiff in alighting from its car, the complaint in the first and second counts, with sufficient certainty and definiteness avers the failure to perform such duty and in a manner to constitute negligence. Bo in the third count, after averring the duty of stopping the car at the usual or customary stopping-place, the averment of the failure to do so, and the manner and form of the breach of this duty which resulted in the injury to the plaintiff, is sufficiently definite in charging negligence and consequent damage. The complaint upon the whole states a cause of action with that degree of certainty required in pleading, and the court properly overruled the demurrer.

The 2d, 3d, 4th and 5th pleas of the defendant, to which demurrers were sustained, sought to set up contributory negligence on the part of the plaintiff. The 2d plea avers, “that when the car stopped, the lights from the car shone for ten or twelve feet on either side of the track, and that plaintiff could have seen the alleged lumber and debris before lie stepped thereon, by the exercise of ordinary and reasonable care on his part.” There is no averment in this plea that the plaintiff failed to exercise ordinary and reasonable care, or that he did see the lumber. In this respect the plea was bad. The 3d plea assumes that it was the duty of the plaintiff to inquire of the defendant or its agent as to whether the place of stopping was a reasonably safe place, while on the contrary he had a right to assume on the conduct of the defendant, as alleged in the complaint, that it was a safe place for him to alight. The 4th plea for a similar reason was hacl. The 5th plea is nothing more than an effort to excuse one omission of duty on the part of the defendant hy its omission of still another duty. For the reasons stated, these several jileas were subject to the demurrers, and there was no error in the court’s action in sustaining them.

We do not understand it to be a contention on the part of the appellee, as supposed by appellant’s counsel, that any duty rested on the appellant to provide along the line of its railway, depots and stations for the convenience or safety of its passengers, as in case of steam railways, hut only to provide for reasonably safe places for its passengers to get on and off its cars. It cannot be doubted that street railway companies, as common carriers of passengers for hire, are under the duty of exercising the highest degree of diligen.ce and care in conserving the safety of their passengers, and are i-esponsible for the slightest neglect. — Smith v. St. Paul City R. Co., 16 Am. & Eng. R. R. Cases, 310; 7 Rap. & Mack’s Dig. R’y Law, p. 458, § 325. This duty arises when the relation of carrier and passenger begins, and continues until that relation is ended. These propositions of law are not disputed, but it is contended in the present case, that at the time of the injury complained of, the plaintiff was no longer a passenger on the defendant’s car, after alighting from the same, and that the defendant was relieved of all responsibility after the plaintiff had alighted from its car onto the ground at the place where it stopped for that purpose. And this involves the question of the duty of the carrier to provide a reasonably safe place for the landing of its passengers. The same duty of exercising the highest degree of diligence and care in the carriage or transportation of passengers, in law and reason extends to .and includes the safe landing of the passenger at the termination of his journey or ride, and this duty is not performed when the carrier lands its passenger at a time and place of such unknown environment to him, that in his first effort to depart after alighting onto the ground, lie is tripped and thrown by an unseen pile- of lumber and debris. There was evidence which tended to show that the plaintiff became a passenger at night, and, being a dark night, on one of the defendant’s street cars, and paid his fare to be transported thereon, that when nearing the end of his journey he gave the usual stop signal, that in obedience to the signal the car was stopped for him to get off, that he alighted from the car onto the ground, and that at the first step he attempted to take he was tripped and thrown by unseen lumber, which had been piled at the place by the defendant the day previous while repairing a bridge over which its tracks ran, and from the fall received the alleged injuries. There was evidence which also tended to show that the customary stopping place was immediately in front of the church, where the plaintiff was going to attend religious services, but on the present occasion the car passed this customary stopping place, and stopped about thirty feet beyond, and where the lumber and debris were piled by the side of its track, and between the track and the church. While there was conflict in the evidence as to the presence of lumber and debris at the place of stopping, and as to the usual and customary place of stopping in that locality for discharging passengers, we think there can • be no question of the defendant’s liability on the phase of the evidence above stated if believed by the jury.

This case in principle is similar to the case of Richmond City Railway Co. v. Scott, 86 Va. 902, and the doctrine there laid down, and the authorities cited in support of it, are applicable here. We quote from authorities cited in that case. In Wharton on Negligence, section 649, it is said: “When danger approaches it is the duty of the officers of the road to notify passengers, so that they can take steps to avoid it; and failure to give such notice is negligence. So, also, if there is a dangerous place at the landing, it is the duty of the conductor to warn those about stepping out.” “And * * * he must give notice to all if any danger in alighting is probable.”

In Cartwright v. Chicago, etc., R’y Co., 52 Mich. 606, Cooley, C. J., says: “If a car in which there were passengers, ivas not standing where it would be safe for them to alight without assistance, it was the duty of the company to provide assistance, or give warning, or move the car to a more suitable place;” citing Railroad Co. v. Whitfield, 44 Miss. 466; Railroad Co. v. Buck, 96 Ind. 346; McGee v. Railroad Co., 92 Mo. 208; Maverick v. Eighth Ave R'y Co., 36 N. Y. 378. This doctrine applies to street railway companies, and they are bound by the same liability. — Smith v. St. Paul, 32 Minn. 1, s. c. 16 Am. & Eng. R. R. Cases, cited above; Citizens, etc., R. R. Co. v. Twiname, 111 Ind. 589; Topeka City R'y Co. v. Higgs, 38 Kan. 375; Railway Co. v. Findley, 76 Ga. 311; Barrett v. Third Ave. R’y Co., 45 N. Y. 628; Hill v. Ninth Ave. R. R. Co., 109 N. Y. 239.

The record does not show that the item of $159 of hospital fees paid by the plaintiff, while under treatment for his injuries, included anything other than that of the expense of a nurse and a ward in the hospital The court excluded the item of board and traveling expenses paid out by the plaintiff. If the attendance of a nurse was necessary while the plaintiff was under treatment for his injuries received on account of the negligence of the defendant, we cannot see why this is not- as essentially an element of recoverable damage, as the professional fees of the attending physician. So, too, the necessary expense of a private ward in the hospital while undergoing treatment would constitute a proper element of recoverable damage. There was no error in the action of the court in refusing to exclude the item of $159 from the consideration of the jury in estimating plaintiff’s damages.

A majority of the court are of the opinion that there urns error in overruling the motion to suppress the deposition of J. H. Drake. They hold that since the commission was joint and not several and nothing was done by defendant to waive the absence of the commissioner Samford, the execution by Watkins was invalid'; and in this they follow the rule, mentioned in Dogue v. Pearce, 13 Ala. 128, and sustained by other authority, for the maintenance of which they think there are substantial reasons. The writer is of a different opinion. What was said in Dogue v. Pearce, supra, was dictum. The question here presented was not before the court for decision in that case. The depositions here were taken on interrogatories filed under section 1835 (Code, 1896), and that section directs what shall be done. This statute provides: “The party, after making affidavit, may file with .the clerk interrogatories to be propounded to the witness, of which, and of the residence of the witness, and of the commissioner to be appointed, [italics are mine], he must give the opposite party, or his attorney, notice in writing, who has ten days thereafter to file cross interrogatories, to which the party filing the interrogatories may file rebutting interrogatories. After the expiration of the ten days, a commission, accompanied by a copy of the interrogatories and of the cross and rebutting interrogatories, if filed, must be issued by the clerk to take the deposition, which may be taken at such time and place as the commissioner shall appoint. On failure to give notice herein required of the residence of the witness and the commissioner, unless the same is waived by the adverse party, the deposition of such witness must be suppressed at the cost of the party taking it.” — (lode, 1890, § 1835. 1 think the statute clearly contemplates that the party filing the interrogatories shall nominate the commissioner to whom the clerk shall issue the commission. As I construe the statute, he, the party filing the interrogatories, and not the clerk, is required to give the opposite party, or his attorney, notice of the commissioner to be appointed, and the last clause in the statute provides, “on failure to give the no tice herein required,” etc., “unless the same is waived by the adverse party, the deposition of such witness must be suppressed at the cost of the party talcing it.” It is quite clear to my mind that the duty of giving the notice required is imposed upon the party filing the interrogatories, and not upon the clerk; if the latter, why should the costs be imposed upon the party for the failure of the clerk to discharge his duty, in case the deposition is suppressed for failure to give the required notice? Again, it is not to be supposed tliat the clerk would be required to find out or ascertain without the suggestion of the party filing the interrogatories, who could be procured to act as commissioner. it may be, and often is the case, that the deposition is to be taken at a place, where the clerk is entirely unacquainted with any person. Certainly, the statute does not provide that the adverse party may suggest a commissioner, nor is there any authority expressly or impliedly given to the clerk to appoint on his suggestion. If the clerk may appoint a commissioner on the suggestion of the adverse party, and it be required that the commission shall be jointly executed, then it would be in the power of the adverse party to prevent ever obtaining the testimony of the witness on interrogatories, by the suggestion and appointment of a co-commissioner who would fail to act. I think the clerk acted without authority in appointing Samford as a co-commissioner on the suggestion of the adverse party, to act with Watkins, who was nominated by the party filing the interrogatories as the commissioner to be appointed. It is quite evident that the statute confers no such authority. If Watkins was in any respect an unsuitable person to act as commissioner, upon the fact being shown to the court, it would be within the power of the court to control the matter. There is no pretense that Watkins was an unsuitable person, or that the commission was in any respect improperly executed by him, except that Samford did not jointly act with him. It does not appear why Samford did not act; for aught that the court knows he refused to act. I can see no good reason far saying that the execution o.f the commission by Watkins was not valid. The statute under consideration received a construction as to the right of the opposite party to demand notice of the time and place of taking the deposition in Wisdom v. Reeves, 110 Ala. 418, and what was there said seems to me in principle to support my views above expressed.

On the motion for a new trial, the court very properly excluded all the evidence by the jurors who tried the case, as to the manner of their arriving at the verdict. — Eufaula v. Speight, 121 Ala. 613. This evidence being excluded tbe ground of tbe motion based on tbe conduct and action of tbe jury, in reaching a verdict was unsupported. We do not think the verdict of the jury as to the amount of damages awarded, excessive. Other grounds of motion for a new trial, which relate to the rulings of the court on the trial, we have already treated in the foregoing opinion.

For the error pointed out the judgment will be reiver sed and the cause remanded.