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

• Citation: 73 So. 962,198 Ala. 653
• Decision Date: 16 November 1916
• Docket Number: 6 Div. 293
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. LIPSCOMB.
• Court: Supreme Court of Alabama

73 So. 962

198 Ala. 653

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

6 Div. 293

Supreme Court of Alabama

November 16, 1916

Rehearing Denied Jan. 18, 1917

Appeal from City Court, of Bessemer; J.C.B. Gwin, Judge.

Action by Daisy Lipscomb against the Birmingham Railway, Light &amp Power Company. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 450. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Bradley & Morrow, E.L. All, and J.A. Simpson, all of Birmingham, and T.T. Huey, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

THOMAS J.

The plaintiff states her cause of action in four counts. Count 1 charges the wrongful ejection of plaintiff as a passenger from a car; count 2 charges the commission of an assault and battery by defendant's agent or servant on plaintiff as a passenger; and counts 3 and 4 charge that the agent or servant of the defendant carrier negligently permitted one Hill to commit an assault and battery on plaintiff and to eject plaintiff from defendant's car. Defendant pleaded the general issue; and verdict was rendered for the plaintiff.

It is settled in this state that, where a known officer of the law in the apparent exercise of his official authority, disturbs the peace and personal security of a passenger of a common carrier, it is not incumbent upon the agent or servant of the carrier in charge of the train to interfere unless the conduct of the officer is known to be illegal. Where, however, it is plain to such agent or servant of the carrier that the officer is not so in the exercise of his official authority, or that he is abusing that authority--that is, is exceeding the limits of his customary functions in disturbing the peace and personal security of a passenger--it is the duty of such agent or servant to interfere for the protection of the passenger. N.C. & St. L. Ry. v. Crosby, 183 Ala. 237, 62 So. 889; N.C. & St. L. Ry. v. Crosby, 70 So. 7.

In the Crosby Case, 183 Ala. 237, 62 So. 889, this court said:

"If the carrier's servant knows that the arrest or search is illegal, it would doubtless be his duty to make inquiry into the matter and to make seasonable and suitable protest for the protection of the passenger. But it would be contrary to good order and sound policy to require the carrier's servant to forcibly contest with an officer the rightfulness and propriety of his action in making an arrest, or a search, unless, perhaps, it is accompanied by palpably abusive and improper treatment not germane to his official acts. But where the arrest or search is made by a known officer who is invested with the general authority to do such acts, the carrier's servant is under no duty to inquire whether he is in fact acting officially or with lawful authority in the particular case. He may assume these things and is under no duty to interfere with the officer."

The Supreme Court of Georgia, in a case of this character, said:

"The arrest was made by officers of the law, acting under color of their office, and we think the company was under no duty to inquire into the legality of the arrest. The arrest was apparently regular, and, in the absence of any knowledge or notice to the contrary, the officers and agents of the company could assume that it was lawful. *** It would never do to allow a railroad conductor to interfere with officers of the law and prevent arrest by them merely because he did not know whether or not they were acting within their power and authority. If the conductor had knowledge that the arrest was unlawful, then it would be his duty to use extraordinary diligence to prevent it and protect the passenger, but even in that case the company would not be an insurer against such arrest. If the conductor had notice that the arrest was wrongful, it would be his duty to make inquiry into the matter. But where the arrest is by officers of the law and is apparently regular, and there is nothing to put the company on notice that the arrest is illegal, the company cannot be held liable for a failure to interfere with the officers and prevent the arrest." Brunswick & W.R. Co. v. Ponder, 117 Ga. 63, 43 S.E. 430, 60 L.R.A. 713, 97 Am.St.Rep. 152.

Charge 16 was properly refused for that it assumed that plaintiff was the aggressor in an altercation with her...