Highland Ave. & B.R. Co. v. Robinson

• Citation: 125 Ala. 483,28 So. 28
• Parties: HIGHLAND AVE. & B. R. CO. v. ROBINSON.
• Decision Date: 17 April 1900
• Court: Supreme Court of Alabama

28 So. 28

125 Ala. 483

HIGHLAND AVE. & B. R. CO. v. ROBINSON.

Supreme Court of Alabama

April 17, 1900

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by William Robinson, by next friend, against the Highland Avenue & Belt Railroad Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint contained but one count, and the averments of negligence in said count are set forth in the opinion. To this count of the complaint the defendant demurred upon the following grounds: "(1) That said count is indefinite uncertain, and vague, in that it is alleged therein in the alternative that the servants of defendant kicked, knocked shoved, or caused the plaintiff to fall from said car. (2) That if it be true, as alleged in said complaint, that defendant's servants recklessly caused plaintiff to fall from said car, it would, at most, be simple negligence; and it is not averred in said complaint that the plaintiff was rightfully on the said car or that the defendant owed him any duty whatever. (3) For aught that appears in said complaint the plaintiff was wrongfully upon the cars on defendant's road; and although the defendant, by its servants or agents caused the plaintiff to fall from said car, the defendant would not have violated any contractual or other duty to him. (4) That the said complaint is indefinite, uncertain, and insufficient in that it is alleged therein that the plaintiff was recklessly or intentionally kicked, knocked, shoved, or caused to fall from said car, and the defendant is not informed how the alleged kicking, knocking, or shoving was done, nor is defendant informed how plaintiff was caused to fall from said car. (5) That the complaint does not allege any facts which show that defendant is liable for the wanton or intentional act of its servant or agent as therein alleged." This demurrer was overruled, and the defendant duly excepted. The cause was tried upon issue joined upon the plea of the general issue. The evidence for the plaintiff tended to show that he climbed up on the side of one of the freight cars operated by the defendant, and that, just after getting on the ladder, the car moved off; that he was not in the employ of the defendant; that the conductor of the defendant, who was on top of the freight car that was being switched, commanded him to get off of the car; that while he was climbing down the ladder the speed of the train increased, and before he could get off the conductor put his foot on top of his shoulder and shoved him off, and in his fall his foot was caught under the wheels of the car, and was cut off. The evidence for the defendant tended to show that the plaintiff was a trespasser upon the car, and that in getting off of the ladder, in obedience to the command of the conductor, he jumped off on the side of the track where it was rough, which caused him to fall, and thereby sustain the injuries complained of; and that the conductor, who was on said car, did not kick him or shove him off of the car. The court, at the request of the plaintiff, gave to the jury the following written charges: (1) "In order to a recovery by plaintiff it is not necessary that the jury believe that in kicking, knocking, or shoving the plaintiff from the car (if the jury believe from the evidence he was so kicked knocked, or shoved) the conductor actually desired to injure plaintiff." (2) "It is not necessary for plaintiff to prove, in order to recover, that defendant or defendant's agent had any actual desire to injure him." (3) "If the jury believe from the evidence that the defendant wantonly and recklessly or intentionally caused plaintiff's injuries as stated in the complaint then the jury must find for plaintiff." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give the following charges requested by it: (1) "If the jury believe all the evidence, they must find for the defendant." (2) "I charge you that the defendant is not responsible to the plaintiff for the willful, wanton, or intentional conduct of the conductor in injuring the plaintiff, if you believe there was such conduct and injury." (3) "I charge you that you cannot allow the plaintiff any punitive or vindictive damages under the evidence in this case." (8) "I charge you that there is no evidence in this case to show that the conductor was acting within the scope of his agency as such conductor in kicking, knocking, or shoving the plaintiff from the car, if you believe that he did so kick, knock, or shove the plaintiff from the car." (9) "There is no evidence in this case to show that the conductor was authorized by the defendant company to kick, knock, or shove the plaintiff from the car; and, even though the jury may...