(76 South. 472)

#### LOUISVILLE & N. R. CO. v. BANKS.

(6 Div. 990.)

(Court of Appeals of Alabama.

June 12, 1917.)

1. Carriers <&wkey;287(5), 303(4) — Personal Injuries — Taking up Passengers — Starting Train Prematurely.

It is duty of railroad conductor to bold train only for a reasonably sufficient time for passengers to get on and off 'with safety, unless he knows or ought to know that the movement of the train, even after the lapse of that time, would probably result in some injury to passenger then in act of getting on or off.

2. Carriers <&wkey;320(9) — Actions eor Personal Injuries — Question eor Jury — Starting Train While Passenger Boarding it.

In action against railroad company for personal injuries sustained in attempting to board train, where evidence showed that plaintiff, with a ticket, presented herself at the platform of one of the coaches, and upon being directed to go to another coach immediately started to do so, it was a question for the jury to say whether or not defendant’s agent knew or ought to have known that the movement of the train would probably result in some injury to a. passenger then in the act of getting'on the train.

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Action by Nancy Banks against the Louisville & Nashville Railroad Company. Erom judgment for plaintiff, defendant appeals.

Affirmed.

The plaintiff brought suit against the defendant, claiming damages .for personal injuries sustained by her as a passenger. The first count alleged that plaintiff was a passenger, and the second count that she was attempting to board a train of defendant for the purpose of becoming a passenger, and both counts alleged negligence. The pleas were not guilty and contributory negligence. There was verdict and judgment for plaintiff, and from the judgment defendant appeals.

The evidence for plaintiff tended to show that she had purchased a ticket from defendant’s agent; that she went to the station where defendant’s train usually stopped; that she went to the rear coach and started to get on, when a white man, dressed in blue clothes, asked her where she was going, and, when she told him, he directed her to another coach nearer the front of the train; that she went rapidly to get on where she was directed, and just as she caught hold of the rod and stepped on, the train pulled out and she fell off and was hurt. The conductor admitted being present when she was trying to get on the train, but said she got on while the train was moving, and again stepped off before he could stop the train.

There were many exceptions reserved on the trial, but all are waived, except six assignments of error, which for convenience may be grouped as follows: 1, 2, 3, and 4, and 5 and 6; the first group being the refusal of the trial court to> give, at the request of the defendant, charges 5, 7, 8, and 4, as follows:

“(5) The court charges the jury that if you believe from the evidence in this case that the plaintiff went to the wrong, coach for the purpose of boarding, and that some trainman there directed her to another coach, that fact would not raise the absolute duty on the part of the defendant to hold the train until she could board the same.”

“(7) The court charges the jury that the fact, if it he a fact, that the plaintiff first went to the wrong place to board the train, would not raise the duty on the part of the defendant to wait on her, if the train, before she reached the proper place to board it, had already waited a reasonably sufficient length of time for passengers boarding and alighting at proper places to board and alight.”

“(8) If the plaintiff went first to the wrong place to get on the train, that fact would not raise the duty on the part of the defendant to wait longer time for her to .board it, provided the train, before she reached a proper place to board the train, had waited a reasonably sufficient length of time for her to board same, had she attempted to hoard the train at the proper place in the first instance.”

“(4) The court charges the jury that the agents of the defendant were not under the absolute duty to see and know that no passengers were alighting from or boarding the train before signaling the train forward, hut they were only under the duty to- stop the train a reasonably sufficient length-of time for passengers to board and alight.”

The second group refers to excerpts from the court’s general charge, as follows:

“The jury must he reasonably satisfied she was a passenger, if she presented herself at the usual place where the train she was to get on was accústomed to stop, and if it did not stop there, for her to get upon the train, then, she, when she presented herself at that place, she had the protection that is given by law to a passenger, and it then became the duty of the train to stand there a reasonable length of time to allow her to get on the train.”

“If the train failed to stop a reasonable length of time for her to get on the train, and if she was a passenger as alleged in the complaint, and all the other material averments of the complaint are true, then the plaintiff has made out her case under that complaint.”

Tillman, Bradley & Morrow and E. L. All, all of Birmingham, for appellant. Goodwyn & Ross, of Bessemer, for appellee.

SAMEORD, J.

[1] It is the duty of the conductor to hold the train for a reasonably sufficient time for passengers to get on and off with safety, and thereupon his duty ceases, unless he knows or ought to know, from all the facts and circumstances then existing, that the movement of the train even after the lapse of a reasonably sufficient time would probably result in some injury to a passenger then in the act of getting on or off of said train. Sweet v. Birmingham Ry. & Electric Co., 136 Ala. 166, 33 South. 886; B. & A. R. R. Co. v. Norris, 4 Ala. App. 368, 59 South. 66. Charges 5, 7, 8, and 4 state the rule as to when the duty of the conductor ceases, but ignore the exception, as stated above.

[2] In the present case, it being in evi*189dence that the train was in two sections, and that the plaintiff, with a ticket, presented herself at the platform of one of the coaches, and upon being directed by a man in blue clothes to go to another coach, she immediately started to do so, it was a question for the jury to say whether or not the defendant’s agent knew or ought to have known that the movement of the train would probably result in some injury to a passenger then in the act of getting on the train. The charges ignored this, and therefore were properly refused.

The excerpts from the oral charge, made the basis for assignments of error 5 and 6, when taken and considered with the whole charge of the court, present correct statements of the law, as applied to the facts in this case. L. & N. R. R. Co. v. Glascow, 179 Ala. 251, 60 South. 103; B. & A. R. R. Co. v. Norris, 4 Ala. App. 368, 59 South. 66.

There is no error in the record, and the judgment of the lower court is affirmed.

Affirmed.