Beyer v. Birmingham Ry., Light & Power Co.

• Decision Date: 12 February 1914
• Citation: 186 Ala. 56,64 So. 609
• Parties: BEYER v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

64 So. 609

186 Ala. 56

BEYER v. BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

February 12, 1914

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Lee Beyer against the Birmingham Railway, Light & Power Company for damages for assault and battery. Judgment for defendant, and plaintiff appeals. Affirmed.

McClellan J., dissenting in part.

The complaint is based on the fact that plaintiff was a passenger, and that while a passenger the conductor, agent of defendant, while in the exercise or duty of his employment struck plaintiff with a pistol or other heavy instrument inflicting the injuries complained of.

The following are the pleas referred to: (2) "For further plea in answer to each count of the complaint separately and severally, defendant says that, on the occasion complained of by plaintiff, plaintiff and defendant's said conductor were engaged in a difficulty; that defendant's said conductor was without fault in bringing on the difficulty and that, acting on and under a bona fide belief that he was in danger of serious bodily harm from plaintiff, defendant's said conductor attempted to repel or prevent an attack on him then being made by plaintiff, using no more force than was reasonably necessary therefor, and, unless this was wrong, defendant says that it is not guilty of the wrongs and grievances alleged." (3) "To each count severally and separately defendant says that, on the occasion complained of therein by plaintiff, plaintiff and its said conductor on the car were engaged in a difficulty; that said conductor was free from fault in bringing on said difficulty; that said conductor was in danger of serious bodily harm from plaintiff, and thereupon said conductor attempted to repel plaintiff's attack, using no more force than was reasonably necessary therefor, and, unless this was wrong, defendant is not guilty of the wrongs complained of."

The following charges were refused to defendant: (A) "Gentlemen of the jury, I charge you that if plaintiff was between the gates of the car when he was struck by the agent of defendant, if he was struck by him, he was yet a passenger, and the relationship of carrier and passenger had not ceased." (B) "I charge you that the relation of carrier and passenger existed between plaintiff and defendant until plaintiff passed from the gates of the car."

Arthur L. Brown, of Birmingham, for appellant.

Tillman, Bradley & Morrow and L.C. Leadbeater, all of Birmingham, for appellee.

SOMERVILLE J.

Pleas 2 and 3 assert that plaintiff and defendant's servant were engaged in a difficulty, as to which said servant was without fault, and that the latter attempted to...