[Alabama Great Southern R. R. Co. v. Arnold.] car, without undue haste, it is doubtful, if the question were properly and singly raised, if it sufficiently avers the time had arrived when it had become the duty of the railroad to have a light. The demurrer, however, does not point to this phase of the question, nor does it raise it singly. It takes the broad position that it was not the duty of the railroad to furnish "good and safe platform and lights or either of them." We have shown above that if the road did furnish a platform, it must be good and safe; and that in certain conditions it was its duty to furnish a light. The demurrer does not sufficiently point out or specify any defect in the complaint, and it was rightly overruled. The question of expemplary damages is raised in this case in two forms. It is first objected that such damages can not be recovered, unless specially claimed in the complaint. That is certainly the rule when special damages are awarded. And if the question were an open one, there is much in the argument that exemplary damages, to be recoverable, should be specially claimed. Simple negligence, with damage, authorizes compensatory damages; while to maintain a claim for exemplary, or punitive damages, the negligence must be wilful, wanton, or reckless. We have, however, settled the question otherwise, and we will follow our rulings.-Wilkinson v. Searcy, 76 Ala. 176; 2 Thompson Neg. 1245; Leach v. Bush, 57 Ala. 145; Panton v. Holland, 17 Johns. 92; L. & N. R. R. Co. v. Jones, 83 Ala. 376; Taylor v. Holman, 45 Mo. 371. In Texas the rule seems to be different.-Railway Co. v. Baker, 57 Tex 419; R. R. Co. v. Gierse. 51 Id, 189. The following authorities declare the rule as to special damages. Donnell. v. Jones. 13 Ala. 490; Hooper v. Armstrong, 69 Ala. 343; Pollock v. Gantt, Ib. 373; Squier v. Gould, 14 Wend. 159; Baldwin v. Western R. R. Co., 4 Gray 333; Hart v. Evans, 8 Penn. St. 13; Good v. Mylin, Ib. 51; Lindley v. Dempsey, 45 Ind. 246; Chicago v. O' Brennan. 65 Ill. 160; Johnson v. Gorham, 38 Conn. 513; Adams v. Gardner 78 Ill. 568; Wood v. Rice, 24 Mich. 423. The other phase of the question is presented on the evidence. It is contended for appellant that taking the extremest view the testimony admits of, the conduct of the railroad company does not rise above simple negligence, as contradistinguished from gross negligence, which must be either wilful, wanton, or reckless. Taking into the account the fact that the negligence complained of was the failure to [Alabama Great Southern R. R. Co. v. Arnold.] furnish a light, there is no evidence in this record tending to prove either wilful, wanton, or reckless negligence on the part of the railroad.—Wilkinson v. Searcy, 76 Ala. 176; Barbour County v. Horn, 48 Ala. 576; S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 266; Lienkauff v. Morris, 66 Ala. 406; 1 Suth. Dam. 730; Hamilton v. Third Av. R. R. Co., 53 N. Y. 25; Biles v. Holmes, 11 Ire. Law 16; Avera v. Sexton, 13 Id. 247; Seymour v. C. B. & Q. Railway Co., 3 Biss. 43. The circuit court erred in refusing to give charges 3 and 4. When this case returned to the circuit court, the defendant interposed new pleas, and among them plea No. 6. That plea truly sets forth the size of the village of Boligee, the nature of the business done there, that it is what is commonly called a country station, is without a municipal government, and has neither gas, electric, nor other out door lights. It then avers that the station house and its attatchments were amply sufficient and well appointed for the place, its travel and business, and were constructed with as much care as is required and observed, at similar places by well regulated railroads; that they had in door lights at the station house, and that it was not customary on well regulated railroads to maintain out door lights at such country stations. It further avers that their lights were portable, and subject to the call of the travelling public, and that "said plaintiff and the public generally were well acquainted with said station house and the approaches thereto, and the habits and customs connected therewith for the regulation and use of said. station, and for the use of the lights about the same; and defendant avers this being its full duty in the premises, it provided such lights as were required by [of?] it at said station, and neither did the plaintiff nor any one for him, demand any further or additional lights, nor ask to be lighted to or from the stopping place of said train on said night." The plea is very full, and covers the whole ground it relies on as a defense to the action. That ground is, that it had conformed strictly to the usage and custom of well regulated railroads at similar country stations, in the construction of its station house and the approaches to it, and in providing lights; and that the lights provided were sufficient, and at the service of plaintiff, if he had called for them. On this plea, as we understand the record, the plaintiff took issue. At all events, the record shows no demurrer to it. There was a demurrer to the complaint, and to plea No. 3, and these were ruled on. The record shows that issue was [Alabama Great Southern R. R. Co. v. Arnold.] joined on the five pleas, and this was the number left after the court, at a former term, had sustained the demurrer to plea No. 3. If the testimony proved the truth of the material averments of fact contained in plea No. 6, under a well settled rule of law, that would have entitled the defendant to a verdict, whether the plea was sufficient or not.—Irion v. Lewis, 56 Ala. 190; Mudge v. Treat, 57 Ala. 1; Jones v. Collins, 80 Ala. 108. Is the plea insufficient, if it had been demurred to? Railroad companies and other corporations are persons—artificial persons, it is true-but yet clothed with all the rights, as well as bound by all the obligations, which protect and govern natural persons. Their liabilities are the same, no greater, no less, than those which rest on natural persons in like conditions. A hotel keeper, merchant, shop keeper or any other person engaged in business which invites patronage and personal calls, is under an obligation corresponding to that of a railroad company, to provide for the safety of its visiting customers. If doing business, keeping open doors, and inviting and receiving customers in the night time intensifies the diligence of the one, it equally intensifies the diligence of the other, the surroundings being similar. If there is a difference, it is only such difference as the number and frequency of invited calls may make; not a difference in kind, but in degree. If railroad corporations, in the administration of their affairs, conform to the rules adopted, or in general use, by prudently conducted railroads, they are free from blame, unless they violate or disregard some positive requirement of the law, and thereby inflict an injury.-L. & N. R. R. Co. v. Allen, 78 Ala. 494; Ga. Pac. R. R. Co. v. Propst, 83 Ala. 518. In the case of Burke v. Witherbee, 98 N. Y. 562, the plainiiff's intestate had been killed, while working in a mine. A hook had become detached, and a car descended from above, causing the homicide. It was shown that in other mines as well as this, this appliance was used, and that for over a year it had been in use in this mine night and day, without an accident. It was held that this was a full defense to the action. The court, Earle, J., in commenting on the facts of the case, said: "It seems to us quite inadmissible, if not preposterous, to attribute negligence to a mine owner for using an implement which had been employed in different [Alabama Great Southern R. R. Co. v. Arnold.] mines, and which under varying conditions, upon countless occasions, uniformly answered its purpose, without injury to any one." In Laflin v. B. & S. W. R. R. Co., 106 N. Y. 136, in was said to be a general rule that "where an appliance, machine or structure, not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe and convenient, it may be continued without the imputation of negligence." That case is a strong authority bearing on the merits of the present suit. See also Loftus v. Union Ferry Co., 84 N. Y. 455. What we have said above is, at last but the corollary of the generally accepted definition of negligence "the want of such care as men of ordinary prudence would use under similar circumstances."-Shear. & Redf. on Neg. 12. See, also, Cornman v. E. C. Railway Co., 4 Hurlst & Nor. 781. It would be monstrous to hold that, notwithstanding the railroad company did precisely and fully what men of ordinary prudence were in the regular habit of doing under similar circumstances, yet this defendant is liable for the injury the plaintiff suffered therefrom. We can not affirm that the Circuit Court erred in refusing to give charges one and two, for the record does not show that in the construction and maintenance of the ticket office, platform, its approaches and lights, the defendant railroad company conformed to what was customary at similar stations with well regulated railroads. Pleas Nos. 2 and 4 raise the defense of contributory negligence. There was testimony, not disputed, that the platform was only three and a half feet wide, that the steps were of equal width with the door, and immediately in front of it, and that plaintiff was familiar with the place. Going straight out from the door, the plaintiff could not have missed the steps, would not have fallen, would not have been injured. He testified himself that as he was crossing the platform, he was cautioned to "look out for the steps." There is testimony that he crossed the platform obliquely to the right. But this needed no proof. The fact that he missed the steps and fell to the right of them, is proof conclusive that he did deflect to the right. Was this not proximate, contributory negligence? Was he not the author of his own injury?—O'Brien v. Tatum, 84 Ala. infra; Tanner v. L. & N. Railroad Co., 60 Ala. 621; Woodward Iron Co. v. Jones, 80 Ala. 123; Lilly v. Fletcher, 81 Ala. 234; Toomey v. L. B. & So. Coast R'wy Co., 3 J. Scott, N. S. (s. c. 91 Eng. Com. Law), 146; [Alabama Great Southern R. R. Co. v. Mt. Vernon Co.] Siner v. Gr. Western Ry Co., L. R. 3 Exchequer, 150; 1 Add. on Torts, § 34; Wilds v. H. R. Railroad Co., 24 N. Y. 430; Hulbert v. N. Y. Cen., 40 N. Y. 146; Van Schaick v. H. Riv. Railroad Co., 43 N. Y. 527; City of Indianapolis v. Cook, 99 Ind. 10; Seymour v. C. B. & Q. Railway Co., 3 Biss. 43. My own opinion is that the plaintiff was guilty of proximate, contributory negligence, and that on the testimony as deposed to by his witnesses the general charge ought to have been given in favor of the defendant. My brothers, however, think this was a question for the jury. Reversed and remanded. Ala. Gt. So. Railroad Co. v. Mt. Vernon Co. Action against Railroad Company for Collon Burned. 1. Secondary evidence of writing signed in duplicate.—Secondary evidence can not be received, as to the contents of a writing which was signed in duplicate, until the loss or destruction of both parts is proved, or a satisfactory excuse for their non-production is shown. 2. Liability of receiving and connecting carriers on continuous route; variance. A recovery can not be had against an intermediate or connecting carrier, operating part of a continuous route, under a complaint framed as against the receiving carrier, since the contract and liability of the two are materially different. 3. Delivery of goods, as between receiving and connecting carriers; custom.-If, by custom or course of dealing between the receiving and the next connecting carrier, loaded cars are switched off by the former on a side track of the latter's road, for immediate transportation, this amounts to a delivery without further notice; but, if they are to remain on the side track until shipping directions are given, there is no delivery, binding the latter as a common carrier, until the shipping directions are furnished. 4. When title to goods passes; depositing bill of lading in post-office. A delivery of goods to a common carrier, consigned to the purchaser, is a constructive delivery to the purchaser, and passes the property; but, if the bill of lading is taken in the name of the seller, and is not indorsed, though deposited in the post-office, attached to a draft for the purchase-money, and consigned to the purchaser, the title is presumptively retained by the seller, where the bill of lading provides that the goods are deliverable to the order of the seller; and payment of the draft by the purchaser, after the loss of the goods, does not vest the title in him, nor give him a right of action against the carrier. 84 173 137 481 |