Alabama G. S. R. Co. v. Frazier

• Decision Date: 10 June 1891
• Citation: 93 Ala. 45,9 So. 303
• Parties: ALABAMA G. S. R. CO. v. FRAZIER.
• Court: Alabama Supreme Court

9 So. 303

93 Ala. 45

ALABAMA G. S. R. CO. v. FRAZIER.

Supreme Court of Alabama

June 10, 1891

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

Upon the evidence as adduced, the court, at the written request of the plaintiff, gave the following charges: (1) "The court charges the jury that, if they find from the evidence that vindictive damages should be given in this case, they have a right to give such damages as the evidence authorizes not beyond the amount claimed in the plaintiff's complaint." (2) "If the jury believe from the evidence, that Burkitt and Norton swore falsely, in one particular, willfully, the law authorizes the entire disregard of their testimony." (3) "The court charges the jury that the jury are not to count witnesses simply, but to weigh testimony; and if, from the weight of the testimony; the jury are reasonably satisfied of the truth of the plaintiff's complaint, their verdict must be for plaintiff, notwithstanding two witnesses swore against plaintiff." The fourth and fifth charges are the same in effect as charge numbered 2, given at the instance of the plaintiff. The court also gave the following written charges asked by the plaintiff: (7) "The court charges the jury that, if they find from the evidence that plaintiff has made out his case set out in the complaint, then the burden is on the defendant to prove, to the reasonable satisfaction of the jury, that facts set up in plea No. 3, that no more force was used than was necessary to put plaintiff off the train in a lawful manner, are true; and if the jury are not so satisfied from the evidence, then the verdict must be for plaintiff." (8) "The court charges the jury that the burden of proof is on the defendant to establish the truth of the facts set up in plea number 3, and, if the jury are not satisfied from all the evidence that the facts set out in said plea number 3 are true, then the verdict must be for the plaintiff, if his case is made out in all other respects." (12) "When the law says the jury must find their verdict in accordance with the weight of the evidence, this does not mean in accordance with the number of witnesses alone which may swear on a side, but in accordance with the evidence which convinces them that the facts which said evidence tends to prove is true." There were other charges given at the request of the plaintiff, which the opinion renders unnecessary to set out in this statement of facts. The defendant separately excepted to the giving of each of the charges asked by the plaintiff; and in addition to the first and second charges asked by it, which were, in effect, the general affirmative charges, as stated in the opinion, the defendant requested the following charges in writing: (3) "The court charges the jury that, if they believe from the evidence in this case that defendant's train was a through freight train, and did not carry passengers, then it was no part of the duty of the employes of the defendant in charge of said train to deal with passengers, and, if the plaintiff was injured, while attempting to force himself as a passenger on a through freight train, by an employe of the defendant, the defendant would not be liable for the action of its employes in this regard." (4) "The court charges the jury that it is not in the line of duty of a brakeman employed by a railroad company upon a through freight train, upon which, by the known rules and regulations of the company, passengers are not permitted to ride, to put off a trespasser on such train and for any misconduct of a brakeman so employed in putting off a trespasser from said train the defendant is not liable unless the brakeman was directed to do so by the conductor in charge of said train." (5) "The court charges the jury that the relation of carrier and passenger is dependent upon the existence of a contract of carriage between the carrier and passenger, and carriers are not liable to one who has not been accepted as a passenger, and the intention of the passenger to pay his fare is immaterial when there has been no contract of carriage with him." (6) "The court charges the jury that, if they believe from the evidence in this case that plaintiff got upon a through freight train of the defendant that was known not to carry passengers, and in violation of the known regulation of the defendant, and after having been forbidden to do so by the conductor in charge of said train, then the plaintiff was a trespasser, and the defendant owed him no duty as a carrier and is not liable in this case." (7) "The court charges the jury that if the plaintiff, without the knowledge of the defendant, or any of the employes of the defendant, went upon a through freight train, which did not carry passengers for the purpose of passage from one place to another, no recovery can be had from the defendant for any personal injury he may sustain." (8) "The court charges the jury that, if they believe from the evidence in this case that the defendant, the railway company, neither authorized nor ratified the willful trespass committed by the brakeman in this case, if they find from the evidence that a willful trespass has been committed upon the plaintiff in this case, then the jury ought to find a verdict for the defendant." The court refused each of the charges requested by the defendant, and it separately excepted to the refusal of each charge. There was judgment for the plaintiff, and the defendant, who now prosecutes this appeal, assigns the various rulings of the lower court upon the evidence, and on the charges asked, as error.

W. H. Denson and L. A. Dobbs, for appellant.

Dorch & Martin, for appellee.

MCCLELLAN J.

This is an action by Frazier, the appellee, against the Alabama Great Southern Railroad Company, sounding in damages for injuries willfully inflicted by one of defendant's brakemen while acting within the scope of his employment. Plea No. 1 "denies each and every allegation, statement, and averment" of the complaint. The general issue presented by the second plea of "not guilty" is made by statute the equivalent of a denial of all the material allegations of the complaint. Code, § 2675. The issue presented by the two pleas, therefore, is one and the same. If the court erred in sustaining a demurrer to the first plea, it was without injury to the defendant, since it had all the advantages under the second plea to which it was entitled under the first. Railroad Co. v. Davis, 8 South. Rep. 552, and citations. Moreover, the two pleas being in legal contemplation the same, one of them was redundant, and might well have been stricken out on this ground.

2. To this action, counting upon the willful misconduct of defendant's employe, the contributory negligence of plaintiff, relied on in plea No. 3, is no defense. The insufficiency of that plea was correctly adjudged on demurrer. Beach, Contrib. Neg. pp. 49, 50, 53; Railroad Co. v. Watson, 90 Ala. 68, 8 South. Rep. 249; Railway Co. v. Stewart, 8 South. Rep. 708.

3. The complaint makes a case for punitive damages. It charges an assault and battery on the person of plaintiff by defendant's brakeman upon no other provocation than that the plaintiff, while expressing a readiness to get off the train if it were stopped, declined to do so while it was running at such a rate of speed as to render the attempt hazardous. The train was one which, under the regulations and orders of the Company, was not allowed to transport passengers. The plaintiff knew this when he boarded it; but was anxious to get to Chattanooga, and relied upon persuading the conductor to transport him in violation of the rules of the company. He appears to have so continued to rely upon his powers of persuasion as not to have availed himself of an opportunity to alight while the train was stationary, even after both the brakeman and conductor had assured him he must do so. The conductor's orders were to allow no person without a pass, other than employes of the road, to ride on that train. Plaintiff was not an employe, nor had he a pass. He was confessedly a trespasser, and it became the duty of the conductor to eject him. Common knowledge and the uncontroverted evidence in this case concur to the point that brakemen on trains are under the control of the conductor and that it is their duty to obey his orders, and to aid him in maintaining the rules of the service, and in executing the orders of their common master. Similarly, common knowledge and the testimony here leave no room to doubt that a part of a brakeman's duty is to eject or to assist in the ejection of trespassers from trains, the conductor having determined against their right to continue on board. Nothing, indeed, is more common than for a conductor to summon a brakeman to deal with an eject refractory trespassers; it is the usual, if not the universal, course. It was adopted in this instance. the brakeman who committed the assault and battery testifies that he was not in charge of the train, and hence, presumably, had no voice in determining that the plaintiff should be put off. That was the part of the conductor. He did so determine, and sent this brakeman to the caboose to inform plaintiff that he must get off. The brakeman swears that he went down to the caboose, and delivered the message, and that his intention was to put him off if he resisted. Plaintiff insisted upon being allowed to proceed. Presently the conductor came in, and he continued to so insist. Both conductor and brakeman were present from this time until the plaintiff left the train, and throughout the altercation and difficulty in which the injuries complained of were received. Both were insisting that he should get off. The brakeman testifies, and there is nothing in this record to the contrary, that "if...