Birmingham Ry. & Elec. Co. v. Mason
| Decision Date | 16 April 1903 |
| Citation | 137 Ala. 342,34 So. 207 |
| Court | Alabama Supreme Court |
| Parties | BIRMINGHAM RY. & ELECTRIC CO. v. MASON. |
Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.
Action by James Mason against the Birmingham Railway & Electric Company. From a judgment for plaintiff, defendant appeals. Reversed.
Walker Tillman, Campbell & Walker, for appellant.
Bowman Harsh & Beddow, for appellee.
The first count in the complaint avers, that "while plaintiff was engaged in or about becoming a passenger on said car, or being carried as a passenger on said car defendant's servant or agent assaulted and abused plaintiff," etc.
The second count avers, that "while plaintiff was in said car, or engaged in or about boarding the same, defendant through its servant or agent wrongfully assaulted and abused plaintiff," etc.
Each count was demurred to separately on the same grounds, for that it did not appear in and by said counts that the alleged agent was at the time of the assault, acting within the scope of his duty; that it did not appear that the defendant owed any duty to the plaintiff; that it did not appear therefrom that the plaintiff was a passenger on defendant's car and that it did not appear that the assault was wrongful.
The first count purports to state two grounds for recovery, the first, that plaintiff "was engaged in or about becoming a passenger," and the second, "or [[that plaintiff was] being carried as a passenger." The allegation that plaintiff "was engaged in or about becoming a passenger on said car," shows no relation between him and the company as a passenger. He may have been engaged in and about such business, and yet failed to carry out his intention. From aught appearing, he may have been at a distance from the train, and the conductor, if that were important, may not have known of his intentions to become a passenger. Until some offer to become a passenger, the conductor was not bound to know that he would become such. Hutch. on Carriers, § 538; North B. R. Co. v. Liddicoat, 99 Ala. 546, 13 So 18. It is not averred, that the assault by the servant or employé of the company was done by the authority of the company, or by its servant or agent while acting within the scope of his duty. If an assault is committed by a servant of a common carrier of passengers, upon a person not a passenger, and having no relation with the carrier, nor in any way encroaching upon the rights of the carrier, the...
To continue reading
Request your trial
-
Rostad v. Portland Ry., Light & Power Co.
... ... statement that he was a passenger. And again, it was said in ... Birmingham Ry. & Electric Co. v. Mason, 137 Ala ... 342, 34 So. 207, that an allegation to the effect ... ...
- Birmingham Ry. & Elec. Co. v. Mason
-
Connell v. Call-a-Cab, Inc.
...this risk, and to hold it responsible.'" 130 Ala. at 349, 30 So. at 461. A similar holding is found in Birmingham Railway & Electric Co. v. Mason, 137 Ala. 342, 34 So. 207 (1902). Likewise, in Southern Railroad Co. v. Nelson, 148 Ala. 88, 41 So. 1006 (1906), this Court held that the common ......
-
Birmingham Ry., Light & Power Co. v. Anderson
... ... the latter under the duty of accepting the former as a ... passenger. Birmingham Railway & Electric Co. v ... Mason, 137 Ala. 342, 34 So. 207; North Birmingham Ry ... Co. v. Liddicoat, supra; Smith v. Birmingham Ry., L. & P ... Co., 41 So. 307. [1] Counsel for ... ...