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

• Citation: 212 Ala. 27,101 So. 615
• Decision Date: 23 October 1924
• Docket Number: 7 Div. 508.
• Court: Alabama Supreme Court
• Parties: NASHVILLE, C. & ST. L. RY. v. CAMPBELL.

101 So. 615

212 Ala. 27

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

7 Div. 508.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action by Julia Campbell, a minor, suing by her next friend, J. A Campbell, against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 450. Reversed and remanded.

Goodhue & Lusk, of Gadsden, for appellant.

Dortch Allen & Dortch, of Gadsden, for appellee.

SOMERVILLE J.

The complaint in this case counts upon a breach of the defendant carrier's contractual undertaking to carry the plaintiff from Boaz to Littleton. The allegation of breach is that defendant failed to stop its train, on which plaintiff traveled, at Littleton, the point of her destination, and carried her on by and beyond the station. The complaint shows that the train returned to the station, and there discharged the plaintiff.

While there might be circumstances which would justify the failure of a passenger train to stop at a point to which it has undertaken to carry and discharge passengers-a question not here presented-the general rule undoubtedly is that a failure to stop the train at such a point is per se a breach of duty for which an action technically lies. A. G. S. R. R. Co v. Sellers, 93 Ala. 9, 9 So. 375, 30 Am. St. Rep. 17; L. & N. R. R. Co. v. Fugua, 187 Ala. 464, 65 So. 396, 52 L. R. A. (N. S.) 668; B. R. L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241; M. & O. R. R. Co. v. Moreland, 104 Miss. 312, 61 So. 424, 46 L. R. A. (N. S.) 52; 10 Corp. Jur. 825 (sections 1266, 1267). In L. & N. R. R. Co. v. Dancy, 97 Ala. 338, 11 So. 796, it was said:

"That a failure and refusal to stop the train, as alleged, of itself constituted an actionable wrong."

The consequences of the breach may be mitigated by afterwards returning the passenger to the point of his destination and there discharging him safely, but this would not avoid the breach nor defeat the action. The case of L. & N. R. R. Co. v. Dancy, supra, which is strongly relied on by counsel for appellant is very clearly not to the contrary, since the action there was in trespass and case, and the gravamen of the complaint was that the plaintiff passenger had been carried past her station, "and put off with her baggage against her protest and objection."

We of course do not mean to say that merely running a train past the usual place of debarkation is a breach of duty, so long as the train does make a stop in the immediate vicinity. This would not be a failure to stop the train, in the sense of constituting a breach of duty to the passenger.

We think that each count of the complaint states a good cause of action, and is not subject to any of the grounds of demurrer. Whether or not the consequential injuries set up in the complaint are recoverable, as proximately resulting from the contractual breach complained of, cannot be tested by demurrer. Nor can error be predicated of the court's action in overruling defendant's motion to strike from the complaint each of the several allegations intended to support the claim for special damages. The motion to strike is of course appropriate, but, if it be overruled, the objection can and must be made by objections to the evidence, or by requested instructions, or it will not be reviewed on appeal.

No excuse being offered in justification of the failure to stop the train, which, the evidence shows, ran past the station at Littleton, and passed out of sight in the distance, the trial judge properly instructed the jury that plaintiff was entitled to recover at least nominal damages.

In actions ex contractu, as distinguished from actions ex delicto, any breach of the contract entitling the plaintiff to recover nominal damages will support a recovery for mental suffering, though no injury to person or property be shown. W. U. T. Co. v. Manker, 145 Ala. 418, 41 So. 850; W. U. T. Co. v. Krichbaum, 132 Ala. 535, 31 So. 607.

The questions of difficulty arising in this case are with respect to consequential damage resulting from the carrier's breach of duty in not stopping the train at Littleton station in due course of its operation. The elements of damage submitted to the consideration of the jury included (1) mental suffering, and (2) delay, inconvenience, and hardship in making the journey from the station to the home of plaintiff's relatives by a chance conveyance, instead of by the speedier and more comfortable conveyance which she would have had if the train had not gone by.

In actions ex contractu-

"Special damages sustained because of peculiar circumstances, not within the contemplation of the parties when the contract was made, and of which circumstances the carrier had no knowledge, cannot be recovered." 10 Corp. Jur. 838 (section 1279).

This principle has been applied by this court to cases like this, where passengers were carried beyond their destination without being returned thereto. L. & N. R. R. Co. v. Quick, 125 Ala. 564, 28 So. 14; L. & N. R. Co. v. Clark, 205 Ala. 152, 87 So. 676, 14 A. L. R. 695; C. of G. Ry. Co. v. Barnitz, 198 Ala. 156, 73 So. 471, and cases cited. It is of course equally applicable here, and the decisive inquiry necessarily was whether, under the known conditions, the special injuries alleged and shown were the natural and probable consequence of the breach in question, and therefore, as matter of law, within the contemplation of the parties. Dickerson v. Finley, 158 Ala. 149, 48 So. 548.

The circumstances affecting plaintiff in relation to the undertaking of the carrier, and which were known to the carrier, were (1) that plaintiff was a woman; (2) that she would reach her destination about dark; and (3) that her...