Travis v. Louisville & N.R. Co.
Decision Date | 19 June 1913 |
Citation | 183 Ala. 415,62 So. 851 |
Parties | TRAVIS v. LOUISVILLE & N.R. CO. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.
Action by B.M. Travis against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
The substance of count 1 sufficiently appears. Count 3 alleges the operation by defendant of a dining car where it sold articles of food to passengers for immediate consumption guaranteeing the same to be pure and wholesome, and on a certain day, through its agents or servants, sold and served to plaintiff in said dining car for immediate consumption which plaintiff then and there immediately consumed as food tainted, deleterious, or unwholesome oysters, as a proximate consequence of which plaintiff was made sick and sore, etc.
The following charges were given to the jury at the instance of the defendant:
J.B. Brown, A.A. Griffith, and F.E. St. John, all of Cullman, for appellant.
George H. Parker, of Cullman, and John C. Eyster, of Decatur, for appellee.
DE GRAFFENRIED, J.
The Louisville & Nashville Railroad Company maintains, for the convenience and comfort of its passengers, dining cars on some of its passenger trains. The plaintiff, B.M. Travis, was on April 7, 1910, a passenger of the defendant railroad company and some time that evening (probably about 7 p.m.) went into the dining car attached to his train and ate some fried oysters and some scrambled eggs. Shortly thereafter (perhaps 15 or 20 minutes) he was taken sick and his symptoms all indicated that his sickness was probably due to the food which he ate while in the dining car. This sickness of the plaintiff the plaintiff claims was a serious matter. He claims that he was confined to his bed for a long time; that his life was in serious danger; that he incurred much expense in apothecary and doctors' bills; and that he endured much physical pain and mental distress. The plaintiff is of the opinion that the oysters which were served to him in the dining car were spoiled and that they were the cause of all his distress. He is of the further opinion that the defendant's servants or agents were guilty of negligence in serving him the oysters in their alleged spoiled condition, and this suit was brought by the plaintiff against the defendant for the recovery of the damages which he alleges he suffered by reason of said alleged act of negligence on the part of the servants or agents of the defendant.
1. Section 7074 of the Code of 1907 provides as follows "Any butcher or other person who sells, or offers or exposes for sale, or suffers his apprentice, servant, agent, or other person for him, to sell, offer, or expose for sale, any tainted, putrid, or unwholesome fish or flesh, or the flesh of any animal dying otherwise than by slaughter, or slaughtered when...
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