HARALSON, J.
1. The cause of action as stated in the first count, does not arise from a breach of promise, but from a breach of duty growing out of a contract. The averments as to contracts arising out of the ticket, the plaintiff is alleged to have bought, were made as mere matters of inducement, from which an action in case arose for a breach of duty to carry the plaintiff as a passenger. This was the gravamen of the action.— Moseley v. Wilkerson, 18 Ala. 288; Whilden v. Bank, 64 Ala. 27; M. L. Ins. Co. v. Randall, 74 Ala. 170; White v. Levy, 91 Ala. 175; McGhee v. Reynolds, 117 Ala. 413. It was necessary to aver a contract, either express or implied, to constitute the relation of'passenger and carrier, .since a tort by the carrier cannot be committed upon a passenger as such, unless 'such relation is shown to exist. — 5 Am. & Eng. Ency. Law, (2d ed.), 486; Hutchinson on Carriers, § 554; W. U. T. Co. v. Krichbaum, 132 Ala. 535.
2. The second count seems to count not on the failure of defendant’s agent at I-Tuntsville to sell plaintiff a ticket to Tuscumbia, but on his giving him one to Decatur instead, although plaintiff liad applied and paid for a ticket, as averred, to Tuscumbia; and vet, it seems to count also on his alleged unlawful and improper ejec[255]*255tion from tlie train by tlie conductor after it left Decatur on its way. to Tuscumbia. The averments of the count in respect to these matters are, “That plaintiff applied and paid for a ticket [to the agent at Hunsville] to furnish Mm a ticket from said Huntsville to said Tuscumbia, but said ticket agent of defendant wrongfully and negligently failed to do so, and gave and furnished the plaintiff with a ticket only to Decatur, a station on the line of defendant’s said railroad between said cities of Huntsville and Tuscumbia.” It then proceeds to set out, that after the train had passed Decatur, the conductor refused to carry the plaintiff any further, “and agaiust the plaintiff’s protest, remonstrance and objection, and disregarding and in violation of the defendant's duty to convey the plaintiff to the end of his journey at Tuscumbia as aforesaid — for which he had applied and paid for [a ticket] to defendant’s said agent at Huntsville — the conductor and employees of the defendant on and in charge of said passenger train, unlawfully, wrongfully, and in violation of defendant’s duty to safely carry the plaintiff to the end of his journey at Tuscumbia, in a rude aiid forcible manner, removed and ejected the idaintiff from said passenger train and [he] was violently thrown down, and bruised and injured; and that by reason of the failure and negligence of the defendant’s said ticket agent, to furnish and deliver to the plaintiff the ticket for which he had applied to and paid said ticket agent [for], and in furnishing and delivering a ticket only to Decatur and not to Tuscumbia, and by reason of the failure and refusal of defendant to convey the plaintiff safely to his said destination at Tuscumbia as aforesaid, he was seriously injured and caused great suffering, etc., * * and plaintiff avers that the aforesaid acts of the defendant were wrongful, negligent and unlawful, and in violation Of the "duty which the defendant undertook for him to perform to and for plaintiff,” etc.
Construing this 2d count of the complaint most strongly against the plaintiff, it counts on the negligence of the ticket agent at Huntsville in connection with the defendant’s alleged duty to' carry plaintiff to Tuscumbia, as one cause of action; and, also, the duty-[256]*256of defendant'to carry plaintiff and Ms ejection by the conductor, beyond Decatur, as another cause of action. Whether a recovery might be had for injuries sustained by tiie plaintiff in being ejected from the train, if alleged as a consequence of the negligence of the ticket agent at Huntsville, it is unnecessary to decide, in passing on this demurrer. Such injuries are not alleged in the count, as consequential of the negligence of the said ticket agent. The demurrer to the count ought to have been sustained, for that, it contains two causes of action.
3. The demurrers to the 2d, 3d, and 4th pleas of defendant were properly sustained. The facts therein set up do not show contributory negligence, which was the proximate cause of the injury. They could only be the remote cause thereof. — 4 Rapalje & Mack’s Dig. 212, § SI. But the demurrers did not go to their defects in this respect. The last ground' of demurrer was, that the matters set out in said pleas, if any defense, are embraced in the plea of the general issue. It is true, that under this plea, all the facts set up in the other pleas were gone into, and the defendant suffered no injury -in the sustaining of his demurrers to said pleas. At’most, it would be error without injury.
4. The plaintiff was allowed to testify against the objection of defendant, that he tried to get the conductor to lend, him the money to buy a ticket to go on, from Decatur to Tuseumbia. He was allowed to answer he had only a few cents, when he left Decatur. This evidence, in each instance, was improperly admitted, as not shedding any light on the issues to be tided.
5. T (. was shown, that a man by the name of Bynum was on the train at the time plaintiff was ejected. Defendant’s counsel was allowed to ask him on his examination as a witness, if he had been shown a letter from Bynum from Corinth, Miss., addressed to Mr. J. I-T. Fields, of Pickwick, Tenn. On what theory this question was allowed, as being within the issues, has not been made to appear. Bynum was present and ivas examined as a witness by defendant. What the letter contained’was not called for, — if it contained relevant evidence, — nor did it in anywise appear that the evidence [257]*257was allowed for the purpose of the contradiction of Bynum.
6. The witness, Wade, plaintiff’s brother-in-law, testified that plaintiff came to his house the night of the 11th of April, 1901, on his return from Huntsville, that his shoulder was swollen and bruised, and he seemed to suffer throughout the night, hut left next morning. The plaintiff was allowed, against defendant’s objection, to ash him, “What remedies, if any, did you use?” and he answered, that “bathed his shoulder with linament two or three times that night.” This evidence had no bearing on the case. It was not shown, that plaintiff paid anything for the remedies, and their value did not enter, therefore, into the question of damages he might be allowed to recover.
7. The conductor, Mitchell, examined for defendant, testified that the tickets he took up in going from Chattanooga to Memphis, (Decatur and Tuscumbia being between those points), lie usually took back on his next trip from the latter point, to Chattanooga, and sent them from there to Washington. He was asked by plain-ti ff on the cross: “Did you then make any effort to obtain the return of the ticket that you sent in from that trip [from] Chattanooga to Memphis,”- an objection to which by defendant, because it called for illegal and irrelevant evidence, was overruled, and defendant excepted. The witness answered, he did not. The ticket was in evidence introduced by defendant. It does not appear that it was the conductor’s duty to the plaintiff or any one else, to get the ticket from Washington, after he had forwarded it to that point. His failure to make effort for its return, was of no importance, as being within any issue in the case.
8.
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HARALSON, J.
1. The cause of action as stated in the first count, does not arise from a breach of promise, but from a breach of duty growing out of a contract. The averments as to contracts arising out of the ticket, the plaintiff is alleged to have bought, were made as mere matters of inducement, from which an action in case arose for a breach of duty to carry the plaintiff as a passenger. This was the gravamen of the action.— Moseley v. Wilkerson, 18 Ala. 288; Whilden v. Bank, 64 Ala. 27; M. L. Ins. Co. v. Randall, 74 Ala. 170; White v. Levy, 91 Ala. 175; McGhee v. Reynolds, 117 Ala. 413. It was necessary to aver a contract, either express or implied, to constitute the relation of'passenger and carrier, .since a tort by the carrier cannot be committed upon a passenger as such, unless 'such relation is shown to exist. — 5 Am. & Eng. Ency. Law, (2d ed.), 486; Hutchinson on Carriers, § 554; W. U. T. Co. v. Krichbaum, 132 Ala. 535.
2. The second count seems to count not on the failure of defendant’s agent at I-Tuntsville to sell plaintiff a ticket to Tuscumbia, but on his giving him one to Decatur instead, although plaintiff liad applied and paid for a ticket, as averred, to Tuscumbia; and vet, it seems to count also on his alleged unlawful and improper ejec[255]*255tion from tlie train by tlie conductor after it left Decatur on its way. to Tuscumbia. The averments of the count in respect to these matters are, “That plaintiff applied and paid for a ticket [to the agent at Hunsville] to furnish Mm a ticket from said Huntsville to said Tuscumbia, but said ticket agent of defendant wrongfully and negligently failed to do so, and gave and furnished the plaintiff with a ticket only to Decatur, a station on the line of defendant’s said railroad between said cities of Huntsville and Tuscumbia.” It then proceeds to set out, that after the train had passed Decatur, the conductor refused to carry the plaintiff any further, “and agaiust the plaintiff’s protest, remonstrance and objection, and disregarding and in violation of the defendant's duty to convey the plaintiff to the end of his journey at Tuscumbia as aforesaid — for which he had applied and paid for [a ticket] to defendant’s said agent at Huntsville — the conductor and employees of the defendant on and in charge of said passenger train, unlawfully, wrongfully, and in violation of defendant’s duty to safely carry the plaintiff to the end of his journey at Tuscumbia, in a rude aiid forcible manner, removed and ejected the idaintiff from said passenger train and [he] was violently thrown down, and bruised and injured; and that by reason of the failure and negligence of the defendant’s said ticket agent, to furnish and deliver to the plaintiff the ticket for which he had applied to and paid said ticket agent [for], and in furnishing and delivering a ticket only to Decatur and not to Tuscumbia, and by reason of the failure and refusal of defendant to convey the plaintiff safely to his said destination at Tuscumbia as aforesaid, he was seriously injured and caused great suffering, etc., * * and plaintiff avers that the aforesaid acts of the defendant were wrongful, negligent and unlawful, and in violation Of the "duty which the defendant undertook for him to perform to and for plaintiff,” etc.
Construing this 2d count of the complaint most strongly against the plaintiff, it counts on the negligence of the ticket agent at Huntsville in connection with the defendant’s alleged duty to' carry plaintiff to Tuscumbia, as one cause of action; and, also, the duty-[256]*256of defendant'to carry plaintiff and Ms ejection by the conductor, beyond Decatur, as another cause of action. Whether a recovery might be had for injuries sustained by tiie plaintiff in being ejected from the train, if alleged as a consequence of the negligence of the ticket agent at Huntsville, it is unnecessary to decide, in passing on this demurrer. Such injuries are not alleged in the count, as consequential of the negligence of the said ticket agent. The demurrer to the count ought to have been sustained, for that, it contains two causes of action.
3. The demurrers to the 2d, 3d, and 4th pleas of defendant were properly sustained. The facts therein set up do not show contributory negligence, which was the proximate cause of the injury. They could only be the remote cause thereof. — 4 Rapalje & Mack’s Dig. 212, § SI. But the demurrers did not go to their defects in this respect. The last ground' of demurrer was, that the matters set out in said pleas, if any defense, are embraced in the plea of the general issue. It is true, that under this plea, all the facts set up in the other pleas were gone into, and the defendant suffered no injury -in the sustaining of his demurrers to said pleas. At’most, it would be error without injury.
4. The plaintiff was allowed to testify against the objection of defendant, that he tried to get the conductor to lend, him the money to buy a ticket to go on, from Decatur to Tuseumbia. He was allowed to answer he had only a few cents, when he left Decatur. This evidence, in each instance, was improperly admitted, as not shedding any light on the issues to be tided.
5. T (. was shown, that a man by the name of Bynum was on the train at the time plaintiff was ejected. Defendant’s counsel was allowed to ask him on his examination as a witness, if he had been shown a letter from Bynum from Corinth, Miss., addressed to Mr. J. I-T. Fields, of Pickwick, Tenn. On what theory this question was allowed, as being within the issues, has not been made to appear. Bynum was present and ivas examined as a witness by defendant. What the letter contained’was not called for, — if it contained relevant evidence, — nor did it in anywise appear that the evidence [257]*257was allowed for the purpose of the contradiction of Bynum.
6. The witness, Wade, plaintiff’s brother-in-law, testified that plaintiff came to his house the night of the 11th of April, 1901, on his return from Huntsville, that his shoulder was swollen and bruised, and he seemed to suffer throughout the night, hut left next morning. The plaintiff was allowed, against defendant’s objection, to ash him, “What remedies, if any, did you use?” and he answered, that “bathed his shoulder with linament two or three times that night.” This evidence had no bearing on the case. It was not shown, that plaintiff paid anything for the remedies, and their value did not enter, therefore, into the question of damages he might be allowed to recover.
7. The conductor, Mitchell, examined for defendant, testified that the tickets he took up in going from Chattanooga to Memphis, (Decatur and Tuscumbia being between those points), lie usually took back on his next trip from the latter point, to Chattanooga, and sent them from there to Washington. He was asked by plain-ti ff on the cross: “Did you then make any effort to obtain the return of the ticket that you sent in from that trip [from] Chattanooga to Memphis,”- an objection to which by defendant, because it called for illegal and irrelevant evidence, was overruled, and defendant excepted. The witness answered, he did not. The ticket was in evidence introduced by defendant. It does not appear that it was the conductor’s duty to the plaintiff or any one else, to get the ticket from Washington, after he had forwarded it to that point. His failure to make effort for its return, was of no importance, as being within any issue in the case.
8. Young, the ticket agent at Huntsville, who sold plaintiff the ticket, testified to fhe transaction, and his evidence tended to show that two tickets were-called for to Tuscumbia, the night plaintiff purchased his, and that he made a mistake in issuing only one to that point. The evidence elsewhere tended to show, that plaintiff and one Tompkins called for tickets on the occasion from Huntsville to Tuscumbia. The plaintiff asked him on the cross, “Did you ever make that mistake before?” [258]*258and lie ivas allowed to answer, against defendant’s objection, that it was illegal and irrelevant, that he had, but he generally got them, before the person got out of the wa.y. We are unable to see what this evidence had to do with the casé. The plaintiff’s damages could not be increased or in anywise affected, by any similar mistakes the agent may have theretofore made, even if numerous.
This witness was further asked by plaintiff, against defendant’s objection: “I-Ias your employer, the Southern Railway Company, ever called on you to give security or indemnity for this case?” He was allowed to answer, and replied, that it had not. The question was proper, since if he had given such indemnity or security, it was calculated to bias him as a witness in defendant’s favor, and would have been proper for consideration by the jury, going to his credibility. Moreover, the answer was favorable to defendant.
9. The court, at the request of plaintiff charged the jury, that “If they believed the evidence, they would find for the plaintiff.” The court added, that the charge “was given them in connection with the charge of the court in chief, with reference to the measure of damages under ea.ch count of the complaint.” The charge in chief does not appear in the transcript.
The evidence of the plaintiff, as to what occurred on the train before plaintiff’s ejection, and at that time, was in direct conflict, on both questions, — as to whether there was any liability or not, — on the part of defendant for damages to plaintiff, and, if so, as to the extent of the damages. The giving of the charge, under this state of proof, was manifestly erroneous.
There was no error in the other charges given for plaintiff. As to those requested by defendant, it does not appear that they were refused.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and. remanded.