Lampkin v. Louisville & N.R. Co.

• Court: Supreme Court of Alabama
• Writing for the Court: HARALSON, J.
• Citation: 106 Ala. 287,17 So. 448
• Parties: LAMPKIN v. LOUISVILLE & N. R. CO.
• Decision Date: 11 April 1895

17 So. 448

106 Ala. 287

LAMPKIN
v.
LOUISVILLE & N. R. CO.

Supreme Court of Alabama

April 11, 1895

Appeal from city court of Decatur.

Action by Lyman Lampkin against the Louisville & Nashville Railroad Company. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Reversed.

This was an action of tort brought by the appellant, Lyman Lampkin, against the appellee, the Lousville & Nashville Railroad Company, to recover damages for an alleged breach of duty to plaintiff by reason of an alleged assault committed upon plaintiff by one of the defendant's brakemen, while the plaintiff was a passenger upon one of defendant's passenger trains. The complaint, after alleging that the defendant was a railroad corporation, engaged in the business of the carriage of passengers for hire, continued as follows: "Plaintiff avers, that on, to wit, the 9th day of June, 1890, he boarded defendant's regular passenger train (the same being used by defendant for the carriage and transportation of passengers) at Athens, Alabama, and paid defendant's agent, the conductor of said train, full fare for a first class passage to Decatur, Alabama; that while en route, and on the way to Decatur, one _____, who was a brakeman or flagman on defendant's train, and an employé of defendant, used vile and insulting language to plaintiff, calling him opprobrious names, improper, indecent, vulgar and obscene language, threatening at the same time bodily hurt to plaintiff; that upon the arrival of defendant's train at Decatur, Alabama, and while plaintiff was in the act of getting off of defendant's train, said _____, (whose name is to the plaintiff unknown,) employé of defendant, as aforesaid, wrongfully did assault and beat plaintiff, by striking him over the head, knocking him off of defendant's car, and wounding plaintiff by cutting great gashes in his head, from which the blood flowed profusely, at the same time cursing plaintiff in the most profane language." The defendant demurred to this complaint, on the grounds: (1) It does not give the name of the person whom it alleges was in the employ of the defendant, and who committed the act complained of. (2) It is repugnant, in that it alleges that said person was a flagman or brakeman, without showing which, or the nature of his employment. (3) The complaint does not allege that the injury complained of was done by said person in the line of his employment as a servant of this defendant. (4) Said...