Louisville & N.R. Co. v. Johnson

• Decision Date: 01 May 1891
• Citation: 92 Ala. 204,9 So. 269
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. ET AL. v. JOHNSON.

9 So. 269

92 Ala. 204

LOUISVILLE & N. R. CO. ET AL. v. JOHNSON.

Supreme Court of Alabama

May 1, 1891

Appeal from circuit court, Cullman county; H. C. SPEAKE, Judge.

Jones & Falkner, for appellants.

W T. L. Coffer, for appellee.

CLOPTON J.

Appellee as administratrix, sues to recover damages for the death of A. W. Johnson, alleged to have been caused by the culpable negligence of the employes of defendants. Plaintiff's intestate having taken passage on a train of defendants, and having willfully and persistently refused to pay his fare when asked, becoming boisterous, and using profane and very obscene language, clearly shown by the evidence, it became the duty of the conductor to protect defendants against such intrusion, and the passengers against insult and annoyance. The right of the conductor to put him off the train, under such circumstances, does not admit of serious question. By refusing to pay his fare when rightfully demanded, and by his gross misconduct, deceased forfeited all right to remain in the car, and assumed the position of an intruder. The conductor was not required to have consideration for his convenience, and was authorized to stop the train and put him off at any point on the railroad, having reasonable regard for his personal safety. The company owed him no duty other than the duty it owes to any trespasser,-not to inflict intentional, reckless, or wanton injury. In exercising the right of expulsion, unnecessary force must not be used, nor must it be exercised at such time, place, and under such circumstances that serious injury will probably and naturally result; for, if it ensues, this is the equivalent of the intentional, reckless, or wanton injury. Subject to these limitations and restrictions, the time, place, and circumstances are left in the discretion and judgment of the conductor. Wyman v. Railroad Co., (Minn.) 25 N.W. 349; Railroad Co. v. Gants, (Kan.) 17 P. 54; Railway Co. v. Miller, 19 Mich. 305; McClure v. Railroad Co., 34 Md. 532; Hutch. Carr. § 590; Ror. R. R. 960; Railroad Co. v. Womack, 84 Ala. 149, 4 South. Rep. 618; Railroad Co. v. Black, 89 Ala. 313, 8 South. Rep. 246. No right of recovery is or can be claimed under the original complaint, which proceeds on the theory that plaintiff's intestate was a passenger. The amended complaint, by the statement that his fare was demanded, and that he neglected or refused to pay it, impliedly conceded the consequent right to remove him from the train, and bases the liability of defendants on the averments that the conductor put him off at a time and place and under circumstances seriously endangering his safety, and exposing him to imminent peril of life or limb from passing trains, and that he was run over and killed by one of defendants' trains. The time was about 6 o'clock in the evening, dark and raining; the place, at or near the entrance to a cut from 200 to 250 yards long, about one mile from Wilhite, a station which the train had just left, also from the home of the deceased. On the right is a mountain or high hill, and on the left a creek, about 12 feet below and 30 or more feet from the railroad, but sufficient space on each side of the road to enable a person to avoid injury by passing trains. Between the cut and Wilhite are a trestle and two stock-gaps. Deceased was familiar with the locality and the cut. He was intoxicated, but not so drunk as to be unconscious or stupefied; had the use of his mental and physical faculties. There was nothing in his manner to indicate to the conductor that he could not or would not avoid the danger of a passing train. A train was due about 30 minutes thereafter, and two others passed during the night. His body was discovered the next morning on the opposite side of the track, a short distance from where he was put off, badly mangled. He was not injured while being ejected, or by the train from which he was removed, or by exposure to any perils incident or peculiar to the time or place, disconnected from the passing of other trains. From the position and condition of his body it may be assumed that he was run over and killed by another train, and this the amended complaint avers. Under its averments, and on the evidence, the material inquiry is whether putting him off at such time and place was the proximate cause of his death, or his own negligence, or other intervening agency.

Drunkenness has been styled a self-imposed disability, and men make themselves drunk at their peril. It...