Louisville & N.R. Co. v. Courson, 6 Div. 951

• Decision Date: 08 April 1937
• Docket Number: 6 Div. 951
• Citation: 174 So. 474,234 Ala. 273
• Parties: LOUISVILLE & N.R. CO. v. COURSON.
• Court: Alabama Supreme Court

174 So. 474

234 Ala. 273

LOUISVILLE & N.R. CO. v. COURSON.

6 Div. 951

Supreme Court of Alabama

April 8, 1937

Rehearing Denied June 3, 1937

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action for damages for personal injury by G.R. Courson against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Chas H. Eyster, of Decatur, and White E. Gibson, of Birmingham for appellant.

Harsh Harsh & Hare, of Birmingham, for appellee.

THOMAS Justice.

The suit was for personal injury.

The complaint contained three counts Plaintiff withdrew count 2 and the court gave the general affirmative charge as to count 3, leaving only count 1, upon which the trial was had.

The gravamen of count 1 is as follows: "*** defendant was a common carrier of passengers for hire and reward by means of a railway train or trains, and facilities, and plaintiff was the passenger of defendant on said occasion and as such passenger was riding in a railway coach of which on said occasion defendant was in charge or control.

"Plaintiff avers that on said occasion defendant negligently conducted itself in or about carrying plaintiff as its passenger and as a proximate consequence thereof the glass in a door of said coach fell and struck the plaintiff and inflicted cuts, wounds and other injuries on his person; *** all to his damage, which he claims, and he also claims punitive damages."

The defendant pleaded the general issue, in short by consent, with leave to give in evidence as a matter of defense any matters which would constitute a good defense, if specially pleaded.

The court stated to the parties: "I just got through stating to the jury that Count One covers both claims of the plaintiff," viz.: (1) "that the defendant so negligently conducted itself in or about carrying him [plaintiff] as a passenger that as a proximate consequence of their negligence he was" injured, and (2) "that the door of the car was defective and jammed or stuck, and that he was injured as a proximate consequence of that defective condition of the door, and that that was proximately caused by the defendant's negligence." That is to say, plaintiff bases his claim on (1) breach of contract, defective equipment, and (2) on the breach of duty of the conductor in not apprehending a disorderly passenger, who, in seeking to open the door, broke the glass that caused the plaintiff's injuries.

There was conflict in the evidence as to the physical condition of the door, or whether or not it was in proper condition in and for its use; and as to how the glass in the door was broken. There was further conflict in the evidence as to whether or not Hurst--the one who in passing through the door broke the glass and in so doing caused the injury--was drunk. The evidence fails to disclose that the conductor was present at any time when it is alleged Hurst took a drink, was boisterous, rude, or rough in his conduct, or that he did any act from which defendant's agent might have foreseen that he or others would strike or break the glass. It was an excursion train. The duty and responsibility of defendant's employees in charge will be judged in the light of the circumstances of the occasion, immediately or reasonably preceding the incident or accident causing the injury.

The general averments of count 1, to which demurrer was directed, were well within the rule that obtains in this jurisdiction in the charging of simple negligence. Dwight Manufacturing Co. v. Holmes, 198 Ala. 590, 73 So. 933; Seaboard Air Line Railway Co. v. Mobley, 194 Ala. 211, 69 So. 614; Louisville & Nashville R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am.St.Rep. 29; Alabama Great Southern Railroad Co. v. Robinson, 183 Ala. 265, 62 So. 813; Birmingham, Ensley & Bessemer R. Co. v. Stagg, 196 Ala. 612, 72 So. 164; Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556; McQueen v. Jones, 226 Ala. 4, 145 So. 440.

The "time and place of injury" cases cited, as to injury to animals (Louisville & N.R. Co. v. Whitley, 213 Ala. 525, 105 So. 661; Bugg v. Green, 215 Ala. 343, 110 So. 718), are not applicable to a case involving injury to a passenger on board a train, and as the train proceeded.

The two questions sought to be propounded to defendant's inspector of police, Goad, who was aboard the train at the time and place in question, were proper. The court having allowed the plaintiff to present the damnifying cause--the defective door and the physical and mental condition of Hurst when he broke the glass--defendant had the right to rebut such unfavorable inferences as to the trainman's knowledge of any unusual or boisterous conduct on the part of Hurst immediately preceding his breaking the glass. The matter sought to be elicited was only partially covered by other answers of that witness. The questions to which objections were sustained were: "Did you know, or have any information on which to base any knowledge, that he was going to take a notion to break out a glass with his fist?" and "At any time that you saw him on the occasion of that trip, was he boisterous or rowdy or violent in any way to indicate any probability or likelihood of his doing violence to anybody on that train or any property of the railroad?" The witness testified: "Prior to the time of the breaking of this door on that occasion, Mr. Hurst did not, in my presence disturb anybody or molest anybody in a violent or boisterous manner. Before the time that Hurst broke this glass I had not seen him try to break up any of the Company's property, or break it up, or anything of that kind. I did not hear him make any threats against anybody, the Company or anybody connected with the Company or any passengers on the train, prior to that time." This was a phase of plaintiff's claim growing out of the failure of the inspector to afford protection after having reasonable grounds for believing that violence was imminent. The questions were within the rule of collective facts. East Tenn., Va. & Ga. Railroad Co. v. Watson, 90 Ala. 41, 44, 7 So. 813; Southern Railway Company v. Hanby, 183 Ala. 255, 262, 62 So. 871; Nashville, C. & St. L. Railway v. Crosby, 183 Ala. 237, 62 So. 889. In Tomme v. Pullman Co. et al., 207 Ala. 511, 512, 93 So. 462, 464, this court observed: "It is well settled by the decisions of this as well as other courts that, while it is the duty of common carriers to protect their passengers against violence or insult, whether from their servants or strangers, the liability of the carriers to protect from misconduct of others arises only when the wrong is actually foreseen in time to prevent the misconduct, or it is of such a nature and perpetrated under such circumstances that it might reasonably have been anticipated."

Miles Gray, a witness for plaintiff, testified that Hurst was drunk on the excursion; and further testimony of this witness tended to damage, injure, and reflect upon the character and reputation of Hurst. Defendant sought to show that on the occasion of the injury the two parties (Gray and Hurst) were friends, but that since that time an unfriendly feeling had arisen between them. Such evidence was not competent, for that it was in the nature of an impeachment of Gray, and he was not interrogated to such effect. Under the general rule, anything which tends to show bias, unfriendliness, enmity, or inclines the witness to swear against a party, is admissible. This, however, must be duly presented for impeachment. Drummond v. Drummond, 212 Ala. 242, 102 So. 112.

There was no error in the court declining to exclude the contradictory statements of plaintiff (on direct and cross examination) as to whether or not there was anything wrong with the door. A contradictory tendency of evidence was merely presented by such...