Alabama City G. & A. Ry. Co. v. Sampley

58 So. 974, 4 Ala. App. 464, 1912 Ala. App. LEXIS 338

• Court: Alabama Court of Appeals
• Decided: April 11, 1912
• Status: Published

Opinion

de GRAFFENRIED, J.-

The plaintiff brought this suit against the defendant for recovery of damages which he alleges in the fourth count of his complaint, upon which count the case was tried, he suffered by reason of an assault and battery which Avas committed upon him by the defendant’s conductor Avhile the plaintiff was traveling as a passenger upon one of the defendant’s cars between Alabama City and Gadsden, Ala. This is the second appeal in this case, and it seems to us that the opinion rendered by the Supreme Court on the first appeal (Alabama City, Gadsden & Attalla Ry. Co. v. Sampley, 169 Ala. 373, 53 South. 142) has settled the legal questions presented by the pleadings and the evidence.

1. In the case of Birmingham Electric Co. v. Baird, 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43, the Supreme Court, referring to the right of a conductor in charge of a common carrier to assault a passenger on such train, uses the following language: “He cannot assault a passenger in retaliation for an assault committed upon himself or upon another passenger- and, a fortiori, he cannot assault a passenger for abusive words or in revenge or punishment under any circumstances, and, if he does assault a passenger otherwise than under a necessity to defend himself or a passenger from battery or in rightfully ejecting a passenger who, by his conductor towards other passengers, has forfeited his right of carriage the carrier is liable. The fault of the passenger short of producing a necessity to strike in self-defense will neither justify the conduct- or in striking nor relieve the carrier from liability for his act. Possibly such fault could be considered in mitigation of damages.” In the present case all of the evidence of the plaintiff tended to show that the plaintiff was assaulted while a passenger on the defendant’s train by the defendant’s conductor, who had charge of such train, not on account of any act of the plaintiff Avhich produced a necessity on the part of the conductor to strike in self-defense. There was evidence in the case tending to shoAV that, if the conductor assaulted the plaintiff while he Avas still a passenger on the defendant’s train, he did so on account of certain abusive Avords used by the plaintiff, but not more.

On the other hand, the defendant’s evidence tended to shoAV that the conductor assaulted the plaintiff after the plaintiff had left the car, and had ceased to be a passenger of the defendant, or within the protection of the defendant as such passenger. As Avas said by the Supreme Court in its opinion above cited in this case: “The question vital to this case and about which the evidence Avas in sharp conflict was Avhether defendant’s conductor attacked plaintiff before he had alighted from the car, the rest folloAving uninterruptedly, as plaintiff contended, or Avhether on the contrary defendant’s conductor, having been dragged from the car step by plaintiff and possibly one of his companions, after the latter had alighted from the car, or in any casé Avhether the conductor did not defer this atack until plaintiff had gone some fifteen feet aAvay from the car. Each of these versions found support in the evidence. On defendant’s version of the facts least variant from that pnt forward by plaintiff, namely, that, although the conductor was not justified on the ground of necessary self-defense he deferred his attack until plaintiff had safely gone his way some fifteen feet from the car, the conductor’s wrongful act was Without the range of his employment, and the defendant was not liable.—Gilliam v S. & N. A. R. Co., 70 Ala. 270.” While the evidence of the plaintiff tended to show that the defendant’s conductor not only unlawfully attacked plaintiff while on the defendant’s car as a passenger, but actually knocked him from the car and then jumped from the car and continued the assault, it is evident that the plaintiff was entitled to recover under the fourth count of the complaint as amended, although the jury might have come to the conclusion that while the plaintiff was actually assaulted while on the car he was not actually knocked from the car by the conductor. It is therefore evident that the trial court committed no error in refusing to give charges Nos. 55 and 57 to the jury.

2. Charge No. 56 was covered by charges Nos. 1, 5, 9, 10,11,17,19, 21, 22, and 23, and numerous other charges which we will not take the time to enumerate. It is therefore evident that the court was without error in refusing to give charge No. 56, which was requested by the defendant.

3. Charge No. 58, which was requested by the defendant and refused by the court, was covered by charge No. 31.

4. Under all the evidence in this case, if. the-defendant’s conductor assaulted the plaintiff -while he was on the defendant’s car or the steps of the car and afterwards -jumped from' the car and continued to beat the plaintiff, then the plaintiff was entitled to recover. On the other hand,- if, as the defendant contended, the assault did not take place on the car, but after the plaintiff had left the car, then the defendant was entitled to a verdict.—Alabama City, Gadsden & Attalla Ry. Co. v. Sampley, supra; Birmingham, Ry. & Electric Co. v. Baird, supra. It is therefore evident that the court committed no error under the facts in this case in giving to the jury charge No. 60, which was requested by the plaintiff.

5. During the progress of the trial a Avitness, R. P. Frost, was examined on behalf of the plaintiff. In cross-examining this Avitness, the defendant, without objection from the plaintiff, dmv out of him the fact that “he never kneAV they had passed Alabama City until they reached Black Creek,” which was about the time the conductor called for the fare from Alabama. City to Gadsden. It appears from the evidence that Black Creek is a point between Alabama City and Gadsden. It is therefore evident that the trial court committed no error of which the defendant had a right to complain in permitting the plaintiff on the redirect examination of this Avitness to ask him if he knew Avhen he passed Alabama City, and in permitting the Avitness to answer that question in the negative. The defendant had already proven this same fact by this Avitness Avhile it had him on cross-examination, and, if there Avas error, it was error of which the defendant certainly had no right to complain.

We do not think it is necessary for us to discuss the .question as to Avhether the fourth count of the complaint as amended Avas subject to the defendant’s demurrer. The most casual examination of this count shows that it is not wanting in the averments Avhich are set up as objections to it in the demurrer.

We find no error in the record, and the judgment of the court below is affirmed.

Affirmed.