Louisville & N.R. Co. v. Dancy

• Decision Date: 22 November 1892
• Citation: 11 So. 796,97 Ala. 338
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. DANCY.

11 So. 796

97 Ala. 338

LOUISVILLE & N. R. CO. v. DANCY.

Supreme Court of Alabama

November 22, 1892

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Presiding Judge.

Action by Persia C. Dancy against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J M. Falkner and Chas. P. Jones, for appellant.

Chas. Wilkerson, for appellee.

HEAD J.

This action joins case and trespass in one count; case, in that defendant "failed and refused to stop the train" at Letohatchie, the station of plaintiff's destination whereby she, a passenger, was unable to get off; trespass, in that "plaintiff was carried past said station about one half mile, and put off, with her baggage, against her protest and objection." Plea, general denial. A failure and refusal to stop the train, as alleged, of itself constituted an actionable wrong. Such failure and refusal, if committed, might, by some matter pleaded in avoidance, be justified or excused, and yet, if thereafter, the plaintiff was carried a half mile beyond her station, and forcibly and against her protest and objection ejected from the train, as alleged, a distinct actionable wrong of a different character was committed. No objection was made by demurrer to the method of pleading these causes of action. The failure and refusal to stop the train being alleged conjunctively, it was essential to a recovery for that cause that plaintiff prove that defendant not only failed, but willfully refused, to stop the train at the station. To recover for the other cause, it was incumbent on her to prove that she was put off the train, against her protest and objection, after the station had been passed. These are the issues the pleadings make. They are such as the plaintiff herself tendered, and upon them the case must be tried. The case of Railroad Co. v. Johnston, 79 Ala. 436, is directly in point upon both propositions.

The bill of exceptions sets out all the evidence, and it shows without shade of conflict or dispute that defendant's servants operating the train did not willfully refuse to stop the train at the station, but made every reasonable effort in their power to stop it, and that it was not stopped owing to the appliances imperfectly communicating the signal to the engineer. The station was not a regular stopping place, and trains stopped there only upon signal from the conductor, or upon being flagged. Similarly, in reference to plaintiff's forcible ejection from the train, she and the conductor both testified that she left the train without any protest or objection whatever, and there is no evidence in conflict with their testimony on that point. There were, therefore, fatal variances between the allegations and the proof in respect of both causes of action, and the general affirmative charge requested by the defendant should have been given.

In the light of the evidence found in the record, and in anticipation of probable amendment of the pleadings, we formulate some principles for the guidance of the lower court on another trial:

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