Lampkin v. Louisville & N.R. Co.

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

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 complaint does not allege that the act complained of was done in the execution of the business of this defendant. (5) It is not alleged in the complaint that the acts complained of were done in execution of orders given by the defendant. Upon the submission of the cause, upon these demurrers, the court sustained them, and the plaintiff declining to amend his complaint, the cause was dismissed. In the minute entry of the judgment, the title of the case was written as follows: "Lyman Lampkin v. L. & N. R. R. Co." The plaintiff appeals, and assigns as error the judgment sustaining the demurrer of the defendant, and dismissing the plaintiff's cause.

O. Kyle, for appellant.

Harris & Eyster, for appellee.

HARALSON J.

In Goddard v. Railroad Co., 57 Me. 202, in discussing the question now before us, the court says: "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. *** He must not only protect his passengers against the violence and insults of strangers and co-passengers, but a fortiori, against the violence and insults of his own servants." To the same effect, is the case of Railroad Co. v. Flexman, 103 Ill. 546, in which it is held, that a contract exists between a...