Rehearing
Denied July 3, 1908.
Appeal
from Law and Equity Court, Walker County; T. L. Sowell
Judge.
Action
by John M. Culberson against the Empire Coal Company for
damages for an assault and battery committed upon him by
other passengers while a passenger himself on one of
defendant's cars. From a judgment for defendant
plaintiff appeals. Reversed and remanded.
The
third count of the complaint was in the following language
"Plaintiff claims of defendant, the Empire Coal Company
a corporation, $50,000 damages, for that on, to wit, the 2d
day of October, 1905, the defendant was operating a railroad
between Bergin and Empire, in Walker county, Ala., and was
engaged in the business of carrying passengers for hire
between said points on said railway, and that on, to wit,
said day, plaintiff was a passenger on board one of the cars
used by defendant for the carriage of passengers, and that
George Ross and Joe Rainer were also passengers on said car,
and that soon after the train had started on its way from
Bergin to Empire the plaintiff was assaulted and knocked,
pushed, shoved, or precipitated from said train by the said
George Ross and Joe Rainer, or by one of the said last-named
parties, while the train was moving, and the said plaintiff
as the result of the premises had his skull cracked, bruised,
etc. [ Here follows a number of special damages.] And
plaintiff avers that the conductor on said train, or some one
or more of the servants or agents of the defendant in charge
of said train, had knowledge of the danger that was impending
to plaintiff, and was informed that said assault was
impending, or had knowledge that it was necessary to
intervene in order to protect plaintiff, and said conductor
or said servant knowingly failed or refused to discharge the
duty devolving upon him by interfering or intervening in
order to protect the plaintiff, and such negligence on the
part of such servants of defendant resulted in the injuries
to the plaintiff."
The
following demurrers were filed to this count: "Said
count fails to allege any facts showing that the negligence
of defendant's servants or agents was the proximate cause
of the injury. Said count fails to allege the character of
the danger with which plaintiff was threatened by said Ross
and Rainer. There is no allegation in said count that
plaintiff was without fault in bringing on the alleged
assault, or that he was not the aggressor therein. Said count
does not allege in what way or manner the conductor was
informed of the danger to plaintiff, or that the assault with
which he was threatened was of a dangerous character. Said
count fails to allege in what the negligence of
defendant's servants consisted. There is no allegation
showing that defendant's servants were acting within the
line and scope of their duty and authority at the time of the
alleged injury."
ANDERSON
J.
The
third count of the complaint sufficiently averred that the
plaintiff was a passenger and that the defendant was a
carrier of passengers for hire. It also avers that the
conductor or other servants of the defendant knew of the
impending danger of the plaintiff from Ross and Rainer, and
knowingly failed or refused to discharge the duty devolved
upon them by interfering in order to protect the plaintiff
"and such negligence on the part of said servants of the
defendant resulted in the injuries to plaintiff as
aforesaid." If the officers could have prevented the
injuries to the plaintiff by intervening or interfering, and
knowingly or willfully failed to do so, after knowing of the
threatened danger, their failure to do so was a breach of
duty to the plaintiff for which the defendant would be
answerable. It is true the complaint should aver that the
agents or servants could have prevented the injury complained
of; but we think the averment that "such negligence on
the part of the servants of the defendant resulted in the
injuries of plaintiff as aforesaid" was sufficient. The
negligence complained of was the failure to interfere after
knowledge of plaintiff's threatened danger, and, if said
negligence resulted in plaintiff's injury, then the
injury could have, of course, been prevented by an
interference. " 'The carrier's obligation is to
carry his passenger safely and properly, and to treat him
respectfully; and, if he intrusts the performance of this
duty to his servants, the law holds him responsible for the
manner in which they execute the trust. The law seems to be
now well settled that the carrier is obliged to protect his
passenger from violence and insult, from whatever source
arising. He is not regarded as an insurer of his
passenger's safety against every possible source of
danger; but he is bound...
