Seaboard Air Line Ry. Co. v. Mobley

• Decision Date: 03 June 1915
• Docket Number: 39
• Parties: SEABOARD AIR LINE RY. CO. v. MOBLEY.
• Court: Alabama Supreme Court

69 So. 614

194 Ala. 211

SEABOARD AIR LINE RY. CO. v. MOBLEY.

No. 39

Supreme Court of Alabama

June 3, 1915

Rehearing Denied June 30, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by Mrs. Ruth Mobley against the Seaboard Air Line Railway Company. There was a judgment for plaintiff, and defendant appealed to the Court of Appeals, and it transferred the cause, under Acts 1911, p. 449, § 6, to the Supreme Court. Affirmed.

The facts sufficiently appear. Charges 1, 2, and 3 were the general affirmative charge, and the affirmative charge as to each count of the complaint.

"(6) If you believe from the evidence that two young men passengers entered the ladies' toilet and afterwards closed the door against plaintiff, injuring her, and you further find that defendant's servants and agents did not know and in the exercise of reasonable care could not have known, of the presence of said men in the toilet before the injury occurred, then I charge you that plaintiff cannot recover in this case.

"(7) If two boys, through inadvertence or ignorance entered the ladies' toilet of a Pullman car in the absence of the conductor of the defendant, or the conductor of the Pullman Company, and without the knowledge of either such fact cannot be made the basis of liability against the defendant.

"(8) If defendant's servants and agents were in the exercise of reasonable care, but notwithstanding plaintiff was injured by the acts of other passengers, then plaintiff cannot recover in this case, and your verdict must be in favor of defendant."

"(11) If two young men, without the knowledge of the conductor of such car, or the conductor or other employés of defendant's train, entered the ladies' toilet of the Pullman Palace Car Company's car, and if plaintiff was injured by one or both of said men closing the door against her, without the knowledge of either of said conductors or the trainmen, then there can be no recovery in this case, and your verdict should be for defendant.

"(12) If the conductor and trainmen, or either, of defendant had no knowledge of the presence of the two young men passengers in the, toilet at the time plaintiff was injured by their acts, if you believe she was so injured then plaintiff cannot recover.

"(13) If you believe from the evidence that two young men passengers entered the ladies' toilet of a Pullman car, and thereafter closed the door against plaintiff when she attempted to enter, injuring her, and if you further believe that defendant's conductor and trainmen at the time were in the exercise of reasonable care and had no knowledge of the presence, of said young men there at the time of plaintiff s injury, then plaintiff cannot recover."

"(9) If the jury is reasonably satisfied that plaintiff is entitled to recover, and if you should further be reasonably satisfied from the evidence that the plaintiff's injuries and damages were of slight and not of substantial character, then the jury in its discretion may award plaintiff nominal damages, that is to say, some small sum, such as one cent, or one dollar.

"(10) The court charges you a railroad company's employés have the right to presume that passengers will behave and conduct themselves in a proper manner, and no duty to interfere with the passengers is placed upon such employé until they are made aware that such passengers are not conducting themselves properly."

The following charges were given at the request of plaintiff:

"(1) The court charges the jury that the carrier's obligation is to carry his passengers safely and properly and to treat them respectfully, and that the carrier is obliged to protect his passengers from violence and insult from whatever source arising, and he is bound to use all such reasonable precautions as human judgment and foresight are capable of to make his passenger's journey safe and comfortable.

"(2) It is an actionable breach of the carrier s duty to negligently permit other passengers to use profane or insulting language in the presence of a female passenger."

"(4) The court charges the jury that the law imposes on common carriers the duty of exercising the highest degree of care, skill, and diligence in the transportation of passengers, and holds them responsible for the consequences of the slightest negligence resulting in injury to persons sustaining that relation to them.

"(5) The court charges the jury that as to passengers the contract of carriage imposes upon the carrier the duty, not only to carry safely and expeditiously between the termini of the route embraced in the contract, but also the duty to conserve by every reasonable means their convenience, comfort, and peace throughout the journey, and this same duty is, of course, upon the carrier's agents. They are under the duty of protecting each passenger from avoidable discomfort, and from insult and indignity and from personal violence. And it is not material from whence the disturbance of the passenger's peace and comfort and personal security and safety comes or is threatened; it may be from another passenger, or from a trespasser, or other stranger, or from another servant of the carrier. In all such cases the carrier is liable in damages to the injured passenger."

The following excerpts from the general charge of the court are referred to:

Assignment 15: "If they failed to exercise this high degree of care, skill, and diligence which the law imposes on them, and as a proximate consequence of that failure she suffered her injury, she would be entitled to recover, if you are reasonably satisfied that she was a passenger and was injured as alleged."

Assignment 16: "And the defendant railroad company, common carrier, owes this passenger, and that is the duty that this defendant owed plaintiff in this case. Defendant, after plaintiff became its passenger, if you are reasonably satisfied from the evidence that she did become a passenger on defendant's train, defendant owed her

the duty to exercise, and defendant s trainmen, employéses on the train, likewise owed her the duty to exercise, the highest degree of care, skill, and diligence known to careful, skillful, and diligent persons engaged in the business of carrying passengers by similar means and agencies, consistent with the practical operation of the road, not only to carry her safely, but to conserve her comfort, and protect her from in-suit or abuse by her fellow passenger, or other persons, whether passengers, or otherwise, on the train."

Tillman, Bradley & Morrow and T.A. McFarland, all of Birmingham, for appellant.

John Denson and Clifton L. Brewer, both of Birmingham, for appellee.

THOMAS J.

This action was by appellee to recover damages against appellant for personal injuries alleged to have been sustained by her while being transported as a passenger of the defendant on its passenger train.

The evidence discloses that Mrs. Ruth Mobley bought her ticket to Atlanta, Ga., and boarded appellant's passenger train at the terminal station in Birmingham, Ala., carrying her one year old baby; that she went into the parlor car of appellant's train and paid the additional sum of 75 cents for the privilege of riding on said parlor car; that when the train was between 25 and 40 miles out from Birmingham, Mrs. Mobley went to the ladies' toilet on the car on which she was riding and attempted to open the door thereto; that the door opened with a jerk, disclosing two men who had been drinking; and that fumes of whisky emanated from the toilet as the door opened; that one of the men shoved Mrs. Mobley out and down on the floor against the wall, and the other cursed her. Appellee went back to her seat, rang the bell for the conductor, and reported what had happened to the conductor and to the porter in charge of the car, and the conductor went back to where the men were, fastened them in the toilet, and did not let. them out on their request. Thus confined by the conductor in the toilet the men tried to get out and were disorderly and cursed in appellee's hearing. The appellee claims that this assault on her, and the disorderly conduct of the drunken men, caused her to be bruised and sore in her face and body, seriously affecting her nervous system, causing a cessation of the flow of her milk for the nourishment of her baby, and causing her great physical and mental pain and suffering. The evidence further tends to show that the car in which appellee was riding was a part of appellant's train operated by appellant, and that said car and its conductor and porter were under the charge and control of appellant's train conductor.

There are several assignments of error challenging the rulings of the court on the admission of evidence against the objection of the defendant. The appellee as a witness had testified without objection that when she notified the conductor he went back to where the men were and--

"when he came back he said it was all over, and that he was very sorry it happened; that it was neglect on his part; that he should have been back there."

The bill of exceptions does not show that the question eliciting this statement was duly objected to before answer or after answer, as not responsive to the question eliciting this statement of the conductor, or that motion was made to exclude the statement, and that on ruling of the court thereon an exception was reserved to such ruling. The court's ruling cannot be reviewed by the statement, in the bill of exceptions:

"Defendant here objected to the introduction of that part of the answer of the witness which relates to what the conductor said, on the ground that the same is hearsay."

To review the action of the court in permitting the introduction of the testimony, the objection must be directed to the question when...