Gooch v. Birmingham Railway, L. & P. Co.

58 So. 196, 177 Ala. 293, 1912 Ala. LEXIS 211

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

Opinion

SIMPSON, J.

As will be seen by the pleading (which will be set out in the statement of the case by the reporter), this is an action by the appellant for damages, caused by a shot fired by one who had been a passenger, after having had an altercation with the conductor and motorman.

Appellant states that the main point in controversy is that it is claimed that the court erred in overruling plaintiff’s demurrer to plea 2.

While it is settled law that it is the duty of the employees in charge of a car to use all the means in their power to protect passengers from injuries, assaults, and indignities by others to and upon passengers, yet it is difficult to see how the conductor could better protect a passenger by remaining in the car, while a person on the outside was firing into the car. As the grievance of the person firing was against the conductor, it would seem that his leaving the car would rather tend to draw the firing away from the car, and thus protect the passengers. The plea alleges that the conductor was not in fault in bringing on the difficulty. There was no error in overruling the demurrer to said plea.

We hold that the court erred in sustaining the demurrer to the first and third counts of the complaint, which allege that the shooting was caused by the wrongful act of the motorman in renewing the quarrel and precipitating the difficulty by throwing the controller lever at the negro, and thereby drawing his fire. In thus precipitating the difficulty, the motorman was violating the duty owed to the passengers, of protection, and for the result the defendant became liable.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and Anderson, McClellan, and Sayre, JJ., concur. 'Mayfield and Somerville, J.J., dissent.