Louisville & N.R. Co. v. Penick

• Decision Date: 12 June 1913
• Citation: 62 So. 965,8 Ala.App. 558
• Court: Alabama Court of Appeals
• Parties: LOUISVILLE & N.R. CO. v. PENICK.

62 So. 965

8 Ala.App. 558

LOUISVILLE & N.R. CO. v. PENICK.

Court of Appeals of Alabama

June 12, 1913

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by Mary Penick against the Louisville & Nashville Railroad Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

The following charges were refused to defendant:

"(1) The court charges the jury that you cannot award plaintiff any damages in this action for any abusive, violent, or insulting language by defendant's conductor.

"(2) The court charges the jury that if, after a full and fair consideration of the evidence in this case, your minds are in a state of uncertainty or confusion as to whether the plaintiff is entitled to recover, you should find for defendant.

"(3) The court charges the jury that unless you believe from the evidence that when plaintiff was getting off the accommodation train, the train was moving, you cannot find for the plaintiff under counts 1 and 2 of the complaint."

"(9) The burden rests upon the plaintiff in this case to reasonably satisfy your mind from the evidence that, on the occasion she complains of, she was ejected from defendant's train while it was in motion, or that the defendant's porter or conductor in the presence of the plaintiff used violent, abusive, or insulting language, and drew a pistol and threatened violence, and, unless the jury is reasonably so satisfied from the evidence, you should return a verdict for defendant."

The complaint consisted of two counts, both of which alleged the relation of carrier and passenger for hire, that plaintiff's destination was from Birmingham to Montgomery, that she had procured passage and paid for same between the two points, and that she was ejected from said train in Birmingham. The first count alleges the injuries to have been the proximate consequence of the negligence of the defendant. The second count alleges, in addition to those things alleged in the first count, the further fact that defendant's servants or agents, acting within the line and scope of their authority as such, wrongfully and with force or violence ejected plaintiff from said train while the same was in motion. A third count was added, alleging damages by reason of the use of violent, abusive, or insulting language by the servants of the defendant in the presence of the plaintiff, and threatened violence by the drawing of the pistol.

Tillman, Bradley & Morrow and Frank M. Dominick, all of Birmingham, for appellant.

Harsh, Beddow & Fitts, of Birmingham, for appellee.

WALKER P.J.

The court's refusal to give written charge 2, requested by the defendant, is not a ground of reversal. Alabama Great So. R. Co. v. Robinson (Sup.) 62 So. 813

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The breach of duty complained of in the first count of the complaint was the alleged unwarranted ejection of the plaintiff from the train upon which she was a passenger before its arrival at the destination to which her fare had been paid, and to which she had acquired the right to be carried on that train. In stating the consequences of the alleged ejection it was averred that, "said train being in motion when plaintiff was ejected, she was thrown or caused to fall, was greatly jolted, jarred," etc. It is contended that she could not have been entitled...