Louisville & Nashville R. R. v. Church

46 So. 457, 155 Ala. 329, 1908 Ala. LEXIS 276

• Court: Supreme Court of Alabama
• Decided: April 16, 1908
• Status: Published

Opinion

ANDERSON, J.

“When the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule it is sij-fficient if the complaint aver the facts out of which the duty to act springs and which the defendant negligently failed to do and perform. It is not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty.” — Southern R. R. v. Burgess, 143 Ala. 367, 42 South. 36, and cases there cited. The complaint, in the case at bar, was not subject to the demurrer interposed and which was properly overruled by the trial court. . •

A railroad company cannot escape liability for injuries inflicted upon a passenger upon the ground that they were sustained in a sleeping car owned by another company and which furnished its own agents and servants, notwithstanding the passenger paid an additional fare to the sleeping car company for the privilege of riding- in one of its cars, when it appears that said sleeping car was a part of the railroad company’s train. The railroad company undertook to safely transport the plaintiff, and it was its duty to fnrnisb safe cars and polite attention and carefnl servants, and it was liable for any neglect of duty whereby the plaintiff was injured, whether in a car owned and controlled by the sleeping car company or not. — Penn. Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; Railroad v. Ray, 101 Tenn. 1, 46 S. W. 554; Kinsley v. Lake Shore R. R., 125 Mass. 54, 28 Am. Rep. 200; Pullman Co. v. Norton (Tex. Civ. App.) 91 S. W. 841. This last case was by the Texas court of Civil Appeals, wherein a writ of error was denied by the Supreme Court. The court held that under a contract between the railroad company and the sleeping car company, and as between said parties, the sleeping car company was liable for injuries sustained by the plaintiff when passing from one sleeper to another, but also held that as to the plaintiff’s right both companies were answerable. There is no merit in assignments of error 2, 8, 8, 9, 10, 11, and 12.

Charges 4 and 5, requested by the defendant, were properly refused. If not otherwise bad, they ignore or pretermit all evidence or inferences that the porter was the servant of the railroad company. The law will presume that the porter, if employed and assigned, by the Pullman Company to the control of the interior of the sleeping car in which the plaintiff was riding when injured, exercised such control with the assent of the railroad company. Moreover’, there is nothing in the record to show that the porter was not the servant of the railroad. He was a porter on the Pullman, it is true; but he may have been the servant of the railroad, or employed and controlled jointly by both companies.

Charge 6, requested by the defendant, was properly refused. If not otherwise bad, it was calculated to mislead the jury to believe that they could not find for the plaintiff unless the accident was foreseen or anticipated by the defendant or the Pullman Company — that there must have been corporate negligence, regardless of the acts or omissions of the servants.

The trial court did not err in giving charge 6, requested by the plaintiff, and did not, therefore, err in refusing a new trial for the giving of same. — Southern R. R. v. Burgess, 143 Ala. 368, 42 South. 35.

We are not disposed to put the trial court in error for refusing the new Ijrial. The jury evidently believed the plaintiff’s evidence, which was corroborated as to the extent of her injury, and inspected her hand, which was exhibited to them, and the damage was not excessive, if the injuries were as serious as the plaintiff’s evidence tended to show. Nor was proper diligence shown by the defendant to get the testimony of Dr. Worcester, who resided in Birmingham. The affidavit of counsel shows that plaintiff, in answer to interrogatories propounded to her long before the trial, gave the name of this identical witness as one of the physicians who treated her. If she did not state that he lived in Birmingham, it was doubtless due to the fact that she was not ashed. At any rate, the defendant was informed that such a man treated her, and could have located him before the trial. But, conceding that defendant knew nothing of this witness until plaintiff testified in the case, the court would have doubtless delayed the trial, upon request of the defendant, such a reasonable time as would have enabled the procurement of the witness. In the absence of such a request and refusal, the defendant is in no position to put the trial court in error for refusing its motion because of newly discovered evidence.

The judgment of the city court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.