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

• Decision Date: 05 June 1913
• Court: Alabama Supreme Court
• Parties: NASHVILLE, C. & ST. L. RY. v. CROSBY.

62 So. 889

183 Ala. 237

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

Supreme Court of Alabama

June 5, 1913

Rehearing Denied June 30, 1913

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by Mrs. Dora Crosby against the Nashville, Chattanooga & St Louis Railway for damages for injuries to her while a passenger. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sayre J., dissenting in part.

The complaint contains five counts, each of which shows that plaintiff, a woman, had become a passenger by the purchase of a ticket for transportation over defendant's line, and that while in defendant's station at Albertville awaiting the arrival of the train, she was assaulted and beaten and her person searched for a watch alleged to have been stolen.

The first count alleges that defendant negligently allowed and permitted one R.L. Amos to assault and beat the plaintiff and to lay violent hands on the plaintiff and to search her against her will for a watch alleged by said Amos to have been stolen, and also that defendant's agent at Albertville, Ala., to wit, Robert Whitman, knew of the assault and mistreatment of plaintiff by said Amos and failed and refused to protect the plaintiff against said assault and mistreatment, although plaintiff called upon said Whitman and appealed to him to protect her against the same.

The second count is substantially the same as the first, but omits any allegation of notice to or knowledge by the defendant or its agents of the alleged mistreatment and of plaintiff's appeal to Whitman for protection.

The third count charges that one Whitman, who was then and there the station or depot agent of defendant, and one R.L. Amos did assault and beat the plaintiff and search plaintiff for a watch which was alleged to have been stolen; and further that said assault, battery, and search of plaintiff was permitted by defendant and was committed by its said agent and the said R.L. Amos in breach of its duty to plaintiff.

The fourth count charges that defendant negligently allowed or permitted one Mrs. M.V. Sims to assault and beat the plaintiff and to search her against her will for a watch alleged by the said Mrs. Sims to have been stolen, and further charges that the agent Whitman knew of and failed to protect her in her request, in the language used in count 1.

The fifth count is the same as the fourth, but omitting any allegation of notice to or knowledge by defendant or its agent of the alleged mistreatment and of plaintiff's appeal to Whitman for protection.

Defendant filed a demurrer to each of the counts of the complaint and to each count thereof separately and severally, setting up a number of grounds, including the following:

"(9) Said complaint fails to show that the said depot agent knew or by the exercise of reasonable diligence should have known, that the said assault and battery was unlawful.

"(10) Said complaint does not show that any servant or agent of defendant knew, or by the exercise of reasonable diligence should have known, that the said search was unlawful in time to have prevented said search.

"(11) Said complaint does not show that any servant or agent of defendant could have prevented the said assault and battery or the said search."

These demurrers being overruled, the defendant filed the general issue and six special pleas, the substance of which is shown by the following:

"(4) That the matter complained of in the complaint consisted in a search of plaintiff's person by R.L. Amos, who was then acting as the marshal of the town of Albertville, for a watch claimed to have been stolen, and said search was not caused or participated in by defendant or any agent or employé of defendant.

"(5) That the matter complained of in the complaint consisted of plaintiff being taken into custody and searched by one R.L. Amos, who was then acting as an officer of the law, and without the suggestion, assistance, or connivance of defendant or any agent or employé of defendant."

"(8) That the only basis in fact for this suit is that plaintiff was searched by one Mrs. M.B. Sims and one R.L. Amos for a watch, and this search was made at the instance and request of the plaintiff, and not otherwise."

Plaintiff's demurrers to the special pleas were overruled, and issue was joined in their verdict for plaintiff in the sum of $7,000. The evidence shows without dispute that R.L. Amos, the town marshal of Albertville, while standing near the station was informed by Mrs. Sims of the loss of a watch from a room in which plaintiff had been staying, and that suspicion pointed to her as the guilty party. Mrs. Sims was accompanied by her brother-in-law, Dr. Irvin, and all three of them proceeded to the station, and Amos entered the waiting room where plaintiff was. According to the testimony of Amos, he then said nothing to the agent Whitman, but at once approached plaintiff and told her he wanted to see her privately, whereupon she willingly walked around to the freight room with him; Mrs. Sims and Dr. Irvin accompanying them. Finding other persons in the freight room, they went back around to the colored waiting room, entered, put other persons out, closed the door, and then discussed the stolen watch. Prior to going to the freight room Amos had requested of Whitman the privilege of using that room for a private conversation with plaintiff, to which Whitman consented; and before going to the colored waiting room for the same purpose Amos again asked Whitman for the use of the waiting room, receiving his assent. In the waiting room plaintiff was searched first by Mrs. Sims and then by Amos; Dr. Irvin being present. The testimony of all three is that plaintiff expressed a perfect willingness to be searched, while plaintiff testified that she did not consent and was objecting all the time. Mrs. Sims, Dr. Irvin, Whitman, and two other witnesses corroborate Amos in the statement that Whitman had nothing to do with directing the search and in no way participated in it. Plaintiff testified that when Amos first entered the waiting room he whispered with Whitman, who said, "Bob, take her in the freight room and search her," and that while there she told Whitman she had bought her ticket and called on him to protect her, at the same time denying that she had taken her watch. She is corroborated by two witnesses and is contradicted by Whitman, Amos, Irvin, and Mrs. Sims. Amos states that he was not acting in this matter as an officer of the law, but there is nothing tending to show that Whitman was aware of this fact. Amos did not arrest plaintiff, and Whitman had no reason to believe that an arrest had been made. It is shown without dispute that plaintiff was innocent of any offense in relation to the watch, and that the search was wholly illegal, if not consented to by plaintiff. The following charges were refused the defendant:

"The court charges the jury that if they find from the evidence that plaintiff, after hearing defendant's station agent say to Amos, a policeman, to take her in the freight room and from there to the colored waiting room, or words to that effect, went without objection or protest with said Amos to the freight room, and from there to the colored waiting room, then the verdict should be for the defendant.

"(8) The court charges the jury that if the matter complained of in the complaint consisted of plaintiff's arrest, and her search by one R.L. Amos, who was then and there an officer of the law, to wit, the marshal of Albertville, plaintiff cannot recover in this case, and the verdict of the jury must be for the defendant."

30k1040(11) Overruling Demurrer or Exception to Part of Declaration, Petition, or Complaint.

The overruling of demurrers to complaint in an action against a carrier for damages caused by an illegal search held harmless where other counts of the complaint were sufficient and the instructions properly applied the law.

Dortch, Martin & Allen and Amos E. Goodhue, all of Gadsden, and Spragins & Speake, of Huntsville, for appellant.

Knox, Acker, Dixon & Sterne, of Anniston, and O.R. Hood, of Gadsden, for appellee.

SOMERVILLE J.

It is the duty of common carriers to protect their passengers against violence or improper conduct, whether on the part of its own servants or of other passengers or strangers; but the carrier's liability for failure to protect from the misconduct of others than its own servants arises only when the wrong is actually foreseen or is of such a character and perpetrated under such circumstances as that it might reasonably have been anticipated or naturally expected to occur. Batton v. S. & N. Ala. R.R. Co., 77 Ala. 591, 54 Am.Rep. 80; Britton v. A.& C. Ry. Co., 88 N.C. 536, 43 Am.Rep. 749; 6 Cyc. 604. It is of course a corollary to this rule of liability that the injurious misconduct complained of could have been foreseen in time to permit of its effective prevention. Id.; Montgomery Traction Co. v. Whatley, 152 Ala. 101, 44 So. 538, 126 Am.St.Rep. 17.

This duty is not confined to the case of a passenger on a train or car but extends to the relation so long as it continues, at all times and places. Id.; 6 Cyc. 600 (3).

Nevertheless, the measure of care varies according to time and place; and, while a very high degree of care may be required of the carrier with respect to passengers while actually on its trains or cars, only ordinary care is required as to passengers waiting at its stations, at least under ordinary conditions as they exist in this country. Batton v. S. & N. Ala. R.R. Co., supra.

In the recent case of So. Ry. Co. v. Hanby, 62 So. 871 this subject was carefully considered by this court, and it was there said that "the duty of protection does not arise until such carrier ***...