Birmingham Ry. & Elec. Co. v. Baird

• Decision Date: 31 May 1901
• Citation: 130 Ala. 334,30 So. 456
• Parties: BIRMINGHAM RY. & ELECTRIC CO. v. BAIRD.
• Court: Alabama Supreme Court

30 So. 456

130 Ala. 334

BIRMINGHAM RY. & ELECTRIC CO. v. BAIRD.

Supreme Court of Alabama

May 31, 1901

Appeal from city court of Birmingham; Charles A. Senn, Judge.

Action by J. L. Baird, by his next friend, against the Birmingham Railway & Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint contained three counts. The first count was as follows: "The plaintiff, J. L. Baird, who is a minor under twenty-one years of age, and who sues by his next friend, A. C. Baird, claims of the defendant, the Birmingham Railway & Electric Company, a private corporation under the laws of Alabama, five thousand dollars damages, in this: That on and prior to the 29th day of January, 1898, the defendant was engaged in operating and running cars or trains between Birmingham, Alabama, and East Lake, Alabama, as a common carrier of passengers for hire or reward. That the said J. L Baird embarked on one of defendant's cars or trains at College station, and paid his way to his destination, which was Thirty-ninth street station of defendant's line, near the Avondale Cotton Factory, and the said J. L. Baird notified the conductor in charge of the car upon which plaintiff was riding, one W. E. Sorsby, that his destination was Thirty-ninth street station, and informed said Sorsby that he wished to stop at said station. That when the car upon which the said J. L. Baird was riding reached Thirty-ninth street station it did not stop at said station and thereupon the said J. L. Baird, in order to stop said car, pulled the bell cord on said car to signal the motorman thereon to stop the same, and immediately thereafter the said W. E. Sorsby, conductor as aforesaid, also pulled the bell cord, whereupon the said Baird, finding that the said car had not stopped, and was not slowing up, pulled the bell cord again. The said car not stopping, but continuing to pass beyond said station, and having then reached some distance beyond said station, the said J. L. Baird stepped inside of the car, having before that time been on the back platform of said car, and pulled the bell cord again, whereupon the said Sorsby immediately took hold of the bell cord in front of said J. L. Baird, and prevented his ringing the bell. Thereupon the said J. L. Baird returned to the rear platform of the car, and the said W. E. Sorsby, conductor as aforesaid, pursued him to the rear platform of the car, and with great violence assaulted and beat the said J. L. Baird in the face and on the body and head and neck with his fist and greatly bruised and ill-treated the said J. L. Baird, and put him in great peril of knocking him off the platform of said car. And the plaintiff avers that the said Sorsby committed the acts above mentioned upon the said J. L. Baird while in the performance of his duties as conductor of defendant's said car, and that by reason thereof the said J. L. Baird was greatly humiliated and chagrined, and was brought into the contempt of those present on said car, and that his feelings were greatly outraged and wounded, and he was made sick, sore, and lame by the assault and beating aforesaid; wherefore he sues." In the second count it was charged that the conductor, Sorsby, "while in the discharge of his duties, and in the light of his employment as such conductor, willfully, wantonly, and violently assaulted the said J. L. Baird," etc. In the third count it was charged that the said Sorsby, "while acting within the scope of his employment, followed and pursued the said J. L. Baird out of the car, and onto the platform thereof, and, while the car was moving at a rapid rate of speed, willfully and violently assaulted the said J. L Baird," etc. The cause was tried upon the plea of not guilty. The plaintiff introduced testimony tending to show That on the 29th of January, 1898, the defendant was operating an electric car line as a common carrier of passengers, for hire, from East Lake to Birmingham, and that on said day the plaintiff boarded one of defendant's cars as a passenger at College station, a regular station on defendant's road, and paid his fare for transportation to Thirty-ninth street station, telling the conductor to put him off at said station. That plaintiff had employment with T. C. Thompson & Co. at the cotton factory at or near said Thirty-ninth street station. That the next station beyond Thirty-ninth street station was Mary Pratt Furnace, about a quarter of a mile distant. That when said car was approaching Thirty-ninth street station plaintiff made preparations to get off, going out on the platform, but the car did not stop or slacken its speed, and the plaintiff, seeing that the car was not going to stop, pulled the bell cord, which was one of the ways passengers on the line had to stop the cars when the conductor was not looking. That at this time the conductor was in an adjoining car, but came into the car upon which plaintiff was riding, and caught hold of the bell cord to keep the plaintiff from ringing the bell. Plaintiff said to the conductor, "Why don't you stop the car where I told you?" That both plaintiff and the conductor had hold of the cord, when it broke. That thereupon the conductor advanced rapidly to the plaintiff, who was on the rear platform, and, upon getting within striking distance, struck the plaintiff three times in the face, and just after the third blow one Wheelock, another passenger on the platform, struck the conductor, and then the conductor ceased striking. The proof showed that plaintiff had recently been vaccinated, and was carrying his left arm in a sling, the left sleeve being empty. The proof showed that the bow struck by the conductor was severe, causing physical pain, and the car was full of people; that the plaintiff did not strike back at all; that the time plaintiff rang the bell the car was running 10 or 12 miles an hour; that when plaintiff rang the bell the car began to slow down; that the conductor rang the bell, and then the car got faster; that then the plaintiff tried to ring the bell again, but he and the conductor then had hold of the cord, when it broke, and the conductor advanced rapidly a distance of 10 feet, and struck the plaintiff, knocking him against the hand rail on the rear platform, at which time the car was running 8 or 10 miles an hour over a rough roadbed. Plaintiff also introduced testimony tending to show that the manner of said conductor was angry and violent. The defendant introduced testimony tending to show that it was not the custom for passengers to ring the bell when they wished to get off, but to notify the conductor, who would then ring the bell; also that the manner of plaintiff was angry and violent when he and the conductor were pulling the bell cord; that he did not hear plaintiff ring the bell, but that, when he saw plaintiff catch hold of the cord, he (the conductor) rang two bells, which means stop instantly, but that as fast as he would ring for a stop, the plaintiff's ringing would cause the car to go forward; that when the bell cord broke the conductor was jerked forwards towards and within three or four feet of the plaintiff; and that, if plaintiff told the conductor to let him off at Thirty-ninth street station, the conductor had forgotten it. One of the defendant's witnesses testified that plaintiff and the conductor were striking at each other, but the conductor himself testified that, if the plaintiff struck at him, he did not know it. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

The court, in its oral charge to the jury, among other things instructed them as follows: (1) "I ask your honor to say to the jury that the argument was improper, and that they must not consider it." (2) "If you believe that an assault was committed, and if you believe it was done wantonly and recklessly, under such circumstances the law would justify you in inflicting punitive damages." The defendant separately excepted to each of these portions of the court's oral charge. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If you believe from the evidence that after the cord broke or parted the conductor and the plaintiff continued a struggle, begun between them before such cord broke or parted, and in such struggle, so continued, the plaintiff, after the cord broke or parted, pulled or jerked the conductor rudely and angrily along the car, and the conductor struck the plaintiff, after the cord broke or parted, because of such rude and angry conduct and act of plaintiff, I charge you that the striking of the plaintiff by the conductor at such time and under such circumstances would not be an act done by the conductor in the line and scope of his duty as an agent of the defendant, and your verdict must be for the defendant." (2) "If you believe from the evidence that the plaintiff was the aggressor, that he assaulted and beat the conductor by rudely, violently, offensively, and angrily pulling him along or across the car several feet to the door, and near the plaintiff, and that by such rude, violent, offensive, and angry conduct of the plaintiff the conductor was provoked to strike the plaintiff, your verdict must be for the defendant, even though you might believe from the evidence that the conductor used more force than was necessary." (3) "I charge you, if you believe the evidence, that a conductor has the right to strike a passenger with his fist, who at the time commits an assault and battery on him; and the railroad company, for whom the conductor was employed, will not be liable to the passenger in damages for this striking of him by the...