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

• Citation: 194 Ala. 338,70 So. 7
• Decision Date: 14 October 1915
• Docket Number: 714
• Parties: NASHVILLE, C. & ST. L. RY. v. CROSBY.
• Court: Supreme Court of Alabama

70 So. 7

194 Ala. 338

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

No. 714

Supreme Court of Alabama

October 14, 1915

Rehearing Denied Nov. 18, 1915

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

Action by Mrs. Dora Crosby against the Nashville, Chattanooga & St Louis Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

For former appeal in this case, see 183 Ala. 237, 62 So. 889 where the facts and the pleadings are sufficiently set out for a proper understanding of this opinion. There was judgment for plaintiff in the sum of $7,500.

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

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

THOMAS J.

On the first appeal this court held that the affirmative charge should have been given for the defendant on all the counts of the complaint except count 3. In the last trial, from which this appeal is taken, the court below gave the general charge in favor of the defendant on all the counts except count 3. Appellant's counsel insist that count 3 does not state facts sufficient to show that plaintiff was a passenger at the time of the happening of the assault or search complained of. The count is as follows:

"The plaintiff claims of the defendant the other and further sum of $20,000 damages, for that heretofore, to wit, on the 1st day of May, 1908, the defendant was a common carrier of passengers from Albertville to Attalla, and that on said day the plaintiff purchased a ticket from the defendant and became and was a passenger from Albertville to Attalla, and that it was the duty of the defendant to protect the plaintiff from insult and injury, both at the hands of its agents servants and at the hands of third persons; that while the plaintiff was waiting at the depot in the town of Albertville, for the arrival of the train, upon which she might take passage to Attalla, which said depot was the place provided by the defendant for the accommodation of its passengers, and in the presence of divers people, one Whitman, who was then and there the station or depot agent of the defendant, and one R.L. Amos, did assault and beat the plaintiff and search the plaintiff for a watch, which was alleged to have been stolen, whereby the plaintiff was made sick and sore and was caused to miscarry, and suffered greatly in body and mind, and was greatly humiliated and became and was physically ill for a long time, to wit, from the 1st day of May, 1908, to the bringing of this suit; and the plaintiff avers that she is still sick and suffers greatly in body and mind, by reason of said assault and battery of defendant's said agent and the said Amos. And the plaintiff avers that said assault, battery, and search of the plaintiff was permitted by the defendant and was committed by its said agent and the said R.L. Amos, in violation of its duty to the plaintiff as a passenger of the defendant, all to her damage in the sum of $20,000, as aforesaid."

The grounds of demurrer now insisted upon raise the same questions presented on the former appeal, whether the plaintiff was shown to be a passenger of the defendant at the time of the alleged assault and search, and the duty of the defendant or its agent to provide against or prevent the same. On the former appeal (N.C. & St. Louis Railway v. Crosby, 183 Ala. 237, 62 So. 889), this court said:

"It is, however, necessary for each count of the complaint, charging that defendant negligently allowed or permitted a stranger to assault and beat or search plaintiff, to allege a state of facts upon which the duty of protection or intervention would arise, viz., a knowledge by the defendant of the intended wrong, or reasonable grounds to anticipate it, in time to prevent or interfere with its execution."

And after reviewing the evidence the opinion concludes as follows:

"These considerations lead to the conclusion heretofore stated that, as matter of law on the facts shown, plaintiff was not entitled to recover except upon the third count of the complaint, and only upon the finding of fact that the agent Whitman directed, instigated, or in some way affirmatively participated in the search of plaintiff without her consent."

The facts set out in the complaint constituted plaintiff a passenger. L. & N.R.R. Co. v. Glascow, 179 Ala. 251, 60 So. 103; Ala. City G. & A. Ry. Co. v. Bates, 149 Ala. 487, 43 So. 98. The trial court committed no error in overruling the demurrer to the third count of the complaint.

The duty of the common carrier to exercise the highest degree of skill and diligence in conserving the safety of its passengers, and to make the passengers' journey safe from harm and free from insult, and its responsibility to the passenger for the slightest negligence on its part or on that of its agents and servants proximately resulting in injury or insult to such passenger, are fully discussed in many recent decisions of our court. N.C. & St. L. Ry. v. Crosby, 183 Ala. 237, 62 So. 889; Seaboard Air Line Ry. Co. v. Mobley, 69 So. 614; B.R.L. & P. Co. v. Glenn, 179 Ala. 263, 60 So. 111; L. & N.R.R. Co. v. Glascow, 179 Ala. 251, 60 So. 103; Southern Ry. Co. v. Lee, 167 Ala. 268, 52 So. 648; Culberson v. Empire Coal Co., 156 Ala. 416, 47 So. 237; B.R. & E. Co. v. Baird, 130 Ala. 334, 30 So. 456, 54 L.R.A. 752, 89 Am.St.Rep. 43.

In Tobler v. Pioneer Mining & Manufacturing Co., 166 Ala. 482, 517, 52 So. 86, 98, Mr. Justice Mayfield said:

"If there be any evidence which tends to establish the plaintiff's cause, it is error for the court to withdraw the case from the jury or to direct a verdict, because it is not for the court to judge of the sufficiency of the evidence. But the affirmative charge should not be given when the evidence is conflicting as to any material question necessary for the verdict, or when the evidence is circumstantial, or when a material fact rests wholly in inference; but it may be given, and should on request be given, whenever the court would sustain a demurrer to the evidence interposed by the party requesting the instruction." Cent. R. & B. Co. v. Roquemore, 96 Ala. 236, 11 So. 475; Freeman v. Scurlock, 27 Ala. 411; Carter et al. v. Odom, Sr., 121 Ala. 162, 25 So. 774; Scales v. C.I. & C. Co., 173 Ala. 639, 55 So. 821.

This clearly states the long-established rule of law declaring when the affirmative charge should not be given.

In Amerson v. Corona Coal & Iron Co., 69 So. 601, this court said:

"If there be any evidence which tends to establish the plaintiff's cause, the court should not withdraw the case from the jury, or direct a verdict. It is not for the court to judge of the sufficiency of the evidence, or to decide which of conflicting tendencies of the evidence should be adopted by the jury." McCormack Harvesting Machine Co. v. Lowe, 151 Ala. 313, 44 So. 47; Shipp et al. v. Shelton, 69 So. 102.

It is unnecessary to rehearse the evidence in this case. It is sufficient to say the court should have overruled a demurrer to the evidence had one been interposed by the defendant, for there was evidence tending to establish the plaintiff's cause. The jury were the judges of the sufficiency of the evidence, and of which of the conflicting theories the evidence tended to establish.

The evidence was sufficient to sustain the finding of the jury that the assault upon, and unlawful search of, the plaintiff, was proximately caused or contributed to by the defendant's agent's (Whitman's) direction to Amos, "Bob, take her in the freightroom and search her." This language was susceptible of the interpretation due the words in their ordinary import; that it was an express instruction by defendant's agent to Mr. Amos to search the plaintiff. It was for the jury, in the light of all the surrounding circumstances, to determine the meaning of the statement in question.

This court has not all the advantages enjoyed by the jury for determining a controverted fact. Much depends on the demeanor of the witness. The appearance of candor or of evasion, of interest or of disinterestedness, of assurance or of uncertainty, and the degree of intelligence or familiarity manifested, are matters for the consideration of the jury, in determining the weight which should be accorded to oral testimony. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Southern Ry. v. Morgan, 178 Ala. 590, 59 So. 432; Sherrer v. Enterprise Banking Co., 160 Ala. 329, 49 So. 779; Montgomery Traction Co. v. Knabe, 158 Ala. 458, 48 So. 501; Karter v. Peck & Bros., 121 Ala. 636, 25 So. 1012; Briel v. Exch. Nat. Bank, 180 Ala. 576, 61 So. 277; C. of Ga. Ry. Co. v. Brown, 165 Ala. 493, 51 So. 565. If no other than the plaintiff had testified to the instruction by Whitman to Amos, "Take her in the freightroom and search her," the evidence would have been sufficient to submit the controverted fact to the jury. Charges C, H, and I, were properly refused. Charge B was properly refused because unintelligible.

Where is nothing in defendant's objection to the questions and answers of Mrs. Sims on cross-examination. On her direct examination she had testified:

"Mr. Amos stated to Mrs. Crosby, 'They have missed a watch where you waited on a lady that was hurt in the cyclone. There had been nobody there but you, and they just suspect you of having the watch.' "

In response to this testimony by defendant's witness, the plaintiff on cross-examination asked questions tending to show how Mrs. Crosby came to the house of Mrs. Sims, and how long she remained, and what she was doing there. The testimony on this point, on the part of the defendant tended to show that the plaintiff was the only one who had had an opportunity to steal the watch, and the testimony on...