Alabama City, G. & A. Ry. Co. v. Sampley

• Decision Date: 02 June 1910
• Citation: 53 So. 142,169 Ala. 372
• Parties: ALABAMA CITY, G. & A. RY. CO. v. SAMPLEY.
• Court: Alabama Supreme Court

53 So. 142

169 Ala. 372

ALABAMA CITY, G. & A. RY. CO. v. SAMPLEY.

Supreme Court of Alabama

June 2, 1910

Appeal from Circuit Court, Etowah County; John W. Inzer, Judge.

Action by James J. Sampley against the Alabama City, Gadsden &amp Attalla Railway Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

The questions referred to in assignments 15 and 16 are as follows: "Did you abuse the conductor?" and "Didn't you try to bulldoze him?"

The following charges were refused to the defendant: "(2) Unless the plaintiff has lifted the burden of proof, and satisfied the jury that Lovejoy assaulted plaintiff while on the car or on its step, the plaintiff is not entitled to recover. (3) The court charges the jury that if Sampley first struck Lovejoy, the conductor, and Lovejoy only struck Sampley to protect himself from assault, the jury should find the verdict for the defendant."

Hood &amp Murphree, for appellant.

Goodhue & Blackwood, for appellee.

SAYRE J.

Suing as a passenger, appellee claimed damages for an assault and battery at the hands of defendant's conductor. The fourth count alleges that plaintiff was, on an occasion specified, a passenger on one of defendant's cars, and that while he was a passenger defendant's conductor in charge of the car did assault and beat him. No good purpose was to be served by incumbering the count with the averment of details. On a principle to be referred to presently it may have been that plaintiff's right to a passenger's immunity from abuse and mistreatment by defendant's servants extended beyond the time when he was actually upon the car. In stating his case, therefore, it was not essential that plaintiff should allege that he was upon the car. The general averment that he was a passenger at the time of the wrong and injury complained of was sufficient, and the count was not demurrable.

Plaintiff with two companions, got upon the defendant's car at Attalla for passage to Alabama City. This was between 9 and 10 o'clock in the evening. The car stopped at Alabama City, but it appears that plaintiff and his companions were unfamiliar with the route, and failed to alight there. Afterwards, when the conductor demanded a second fare for transportation to Gadsden towards which point the car was moving, as ordinarily he was entitled to do, an altercation arose as to whether he had announced the Alabama City station. Defendant assigned fault in bringing on the controversy to the fact that plaintiff's party had been drinking, and this theory had substantial support in the evidence. However that may have been, no conduct of the party while they remained upon the car, such as would excuse an assault upon the plaintiff, was shown. Birmingham Railway & Electric Co. v. Baird, 130 Ala. 334, 30 So. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43. The question vital to this case, and about which the evidence was in sharp conflict, was whether defendant's conductor attacked plaintiff before he had alighted from the car, the rest following uninterruptedly as plaintiff contended, or whether, on the contrary, defendant's conductor, having been dragged from the car step by plaintiff, acted in defense of himself against an attack made upon him by plaintiff, and possibly one of his companions, after the latter had alighted from the car, or in any case, whether the conductor did not defer his attack until plaintiff had gone some 15 feet away from the car. Each of these versions found support in the evidence. On defendant's version of the facts least variant from that put forward by plaintiff, namely, that although the conductor was not justified on the ground of necessary self-defense, he deferred his attack until plaintiff had safely gone on his way some 15 feet from the car, the conductor's wrongful act was without the range of his employment, and the defendant was not liable. Gilliam v. S. & N. A. R. Co., 70 Ala. 270. On plaintiff's contention as to the facts defendant was responsible, we think, not only for the initial assault but for such consequences as followed therefrom in natural sequence and as a part of one continuous transaction. Common carriers are obliged, not only to carry passengers safely, but also to conserve by every reasonable means their comfort and safety throughout the journey, and protect them from indignity, insult, and personal violence whether from other passengers, strangers, or employés. Birmingham Ry. & Electric Co. v. Baird, supra. The relation, and the duties arising out of it, continues until the passenger is safely landed at his destination. Montgomery St. Ry. Co. v. Mason, 133 Ala. 508, 32 So. 261; Birmingham Light & Power Co. v. Anderson, 50 So. 1021.

Counts 3, 7, and 8 contained an averment that defendant's conductor did also permit and suffer other persons to assault and beat plaintiff. Count 3 was stricken on demurrer, and this averment, on the day of the trial, was eliminated by amendment from counts 7 and 8. Frost, one of plaintiff's companions on that occasion and a witness for him at the trial, testified without objection that while plaintiff and the conductor were fighting on the ground, some person ran from the car and struck plaintiff. The witness was then permitted, over the defendant's objection, to testify that the conductor did not undertake to prevent the other person striking plaintiff. It must be presumed here that counts 7 and 8 had not yet been amended, because the record leaves the matter at large, and this presumption favors the ruling of the trial court. Kelly v. Burke, 132 Ala 245, 31 So. 512. In this status of the case the question and answer were directly responsive to one of the issues presented by the pleading. It is true beyond question that on the evidence as a whole and as it finally appeared, defendant's conductor...