Moore v. Nashville, C. & St. L. Ry.

• Decision Date: 21 May 1903
• Citation: 34 So. 617,137 Ala. 495
• Court: Alabama Supreme Court
• Parties: MOORE v. NASHVILLE, C. & ST. L. RY.

34 So. 617

137 Ala. 495

MOORE v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Alabama

May 21, 1903

Appeal from Circuit Court, Marshall County; A. H. Alston, Judge.

Action by Charles H. Moore against the Nashville, Chattanooga & St Louis Railway. Judgment for defendant, and plaintiff appeals. Reversed.

The complaint contained but one count, and in this count the plaintiff sought to recover damages for personal injuries sustained by reason of his being ejected from a passenger coach constituting a part of a train on defendant's railway; it being averred in the complaint that the plaintiff was originally a passenger upon said train, and that, while endeavoring to find a seat in the coach which he had entered he "was rudely, willfully, violently, and wrongfully seized by" the conductor of said train, naming him, and was by said conductor "pushed rudely down the aisle of said coach, forcibly ejected therefrom onto the platform thereof, and there hurled backwards with great violence by the said Martin [the conductor] into a ditch, all of which occurred in the presence and hearing of the passengers in said coach, and also in the presence and hearing of a great crowd of people who had gathered about the train; and by reason of all of which the plaintiff suffered great injuries to wit." There then follow the injuries complained of which included personal injuries, and mental suffering incident to ridicule, mortification, and disgrace.

The defendant filed five pleas. The first was the general issue. The second plea was as follows: "(2) That the plaintiff himself was guilty of negligence which contributed proximately to his injury, in this: that at the time of the alleged injury to him he was voluntarily intoxicated, and using obscene or abusive language while on defendant's car, in the presence of other passengers thereon, some of whom were women, and in order to prevent the plaintiff from annoying the said passengers the defendant's conductor took hold of the plaintiff, and put him out on the platform of the car, and on account of plaintiff's drunken condition he fell off of the platform, and thus received the injury complained of, if injury there was." The third and fourth pleas were substantially the same as the second. The fifth and sixth pleas were as follows: "(5) That the plaintiff was himself guilty of negligence which contributed proximately to his injury, in this: that at the time of the alleged injury the plaintiff, while a passenger on the train of the defendant railway, was disorderly, and using profane vulgar, or indecent language, and the said Bright Martin was compelled to remove plaintiff from said train, and in so doing said Bright Martin was acting as police officer, as provided by section 3457 of the Code of Alabama of 1896. (6) That the defendant is in no way responsible for the conduct of said Bright Martin at the time of the alleged injury, as the said Martin was at that time acting as a police officer of the state of Alabama, by virtue of the power conferred upon him under section 3457 of the Code of Alabama of 1896."

The plaintiff demurred separately to the 2d, 3d, 4th, and 5th pleas, upon the grounds that said pleas constitute no valid defense to plaintiff's cause of action, and because said pleas fail to aver that defendant's conductor used no more force than was necessary in putting plaintiff out on the platform of said car. To the sixth plea the plaintiff demurred upon the following grounds: "(1) Because the averment in said plea, that the defendant is in no way responsible for the conduct of said Martin at the time of the alleged injury, is a mere conclusion of the pleader. (2) Because the averment that the said Martin was at the time acting as a police officer of the state of Alabama, by virtue of the power conferred upon him under section 3457 of the Code of Alabama, is a mere conclusion of the pleader, and no valid defense to plaintiff's complaint." These demurrers were overruled, and issue was joined on the pleas filed by the defendant.

The evidence introduced for the plaintiff tended to show that, having a ticket which entitled him to ride as a passenger on defendant's train, he boarded said train, and that, as he was trying to find a seat in the coach which he had entered, Bright Martin, the conductor on said train, forcibly took hold of the plaintiff and knocked him to his knees, and then shoved him down the aisle to the platform of the car, where he caught him in the collar with one hand and by the leg with the other hand, and threw him from the platform into a ditch near the side of the track; that at the time he was so assaulted by the conductor the plaintiff was in no way misbehaving; that he was not drunk at the time, nor was he boisterous or cursing; that after he was thrown in the ditch he was helped on the train by two other people, and while he was being put on the train the conductor Martin also helped put him back on the train. The plaintiff introduced evidence tending to show that he sustained the injuries complained of in the complaint. The plaintiff sought to prove that upon entering the train he went to his son, who was sitting down, and asked him to lend him 15 cents. The defendant objected to the introduction of this evidence, the court sustained the objection, and the plaintiff duly excepted. The plaintiff sought to prove by several of the witnesses that, at the time the plaintiff was ejected from the train, there was the use of a great deal of profane language by persons who were on the outside of the car. The defendant objected to the introduction of this evidence, the court sustained the objection, and the plaintiff duly excepted.

During the examination of one Mose Head, a witness for the plaintiff, he testified, in answer to a question, that the plaintiff told him after the train pulled out that he wanted the witness "to take care of him." The defendant objected to the question which elicited this answer, the court sustained the objection, and the plaintiff duly excepted. Upon motion of the defendant the court excluded the answer from the jury, and to this ruling the plaintiff duly excepted.

The evidence for the defendant tended to show that at the time the plaintiff boarded the train he was very drunk; that there were in the coach at the time several women; that the plaintiff used vulgar and obscene language, and was very boisterous; that the conductor remonstrated with him, and asked him not to be guilty of such conduct, and told him if he did not stop he would have to put...