Southern Ry. Co. v. Hanby

• Citation: 183 Ala. 255,62 So. 871
• Parties: SOUTHERN RY. CO. v. HANBY.
• Decision Date: 15 May 1913
• Court: Supreme Court of Alabama

62 So. 871

183 Ala. 255

SOUTHERN RY. CO. v. HANBY.

Supreme Court of Alabama

May 15, 1913

Rehearing Denied June 19, 1913

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by S.M. Hanby against the Southern Railway Company for damages for injuries from an assault while a passenger. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 3 is as follows:

"Plaintiff claims of defendant the Southern Railway Company, a corporation, and Lewis Malone the sum of $10,000 damages in this: That on and prior to the 20th day of December, 1906 the defendant Southern Railway was a common carrier of passengers by means of a railroad which ran through Jackson, Ala., having at said Jackson a station at which it received and discharged passengers as such common carrier aforesaid; that on, to wit, the above date, plaintiff went to the passenger station of the said Southern Railway Company at Jackson, Ala., for the purpose and with the intent to take passage on one of the passenger trains of the Southern Railway Company leaving Jackson over its said railroad, which said train was to leave within, to wit, 10 or 20 minutes thereafter; plaintiff paid for his transportation over the railroad of the said Southern Railroad to Thomasville, Ala., another station on said railroad, and obtained from the agent of defendant Southern Railway a ticket entitling him and authorizing him to be carried on defendant's passenger train, leaving said station going from Jackson to Thomasville, and said company had contracted with plaintiff to carry him as a passenger on its said train from Jackson to Thomasville, which train was due to leave said Jackson within, to wit, 10 or 20 minutes after, and while plaintiff was waiting at said station for the purpose of taking passage on said train and with the intention of taking passage on said train, he was set upon by a person or persons at defendant's said station and kicked, struck, beaten, knocked down, bruised and had vile epithets applied to him, and plaintiff avers that it was the duty of defendant Lewis Malone, under his employment by defendant, to protect plaintiff, as it was also the duty of defendant Southern Railway Company to protect plaintiff from indignities, assaults, and batteries and other wrongs perpetrated upon him as aforesaid, and plaintiff avers that the defendant negligently failed to perform their duty to the plaintiff in that behalf, but negligently permitted him to be assaulted, beaten, bruised and otherwise ill treated, by reason and as a proximate consequence of which he was caused to suffer (here follows catalogue of injuries) all of which said wrongs and injuries to plaintiff were known to said Southern Railway Company, and to said Lewis Malone, or would have been known by the exercise of such reasonable care and diligence."

The demurrers were as follows:

"Because said count fails to show wherein the defendant violated any duty which it owed to plaintiff, because, as a matter of law, the defendant Southern Railway Company is not liable for the act of its alleged agent Lewis Malone for the alleged acts referred to or described in said count. Said count does not sufficiently show that the plaintiff's injuries were the proximate consequence of the negligence of defendant, or of its alleged agent Lewis Malone. There is no absolute duty upon the part of the defendant Southern Railway Company to protect plaintiff against such assault or injuries as are set out in said count. It does not appear from the allegation of said count that the agent of defendant, Lewis Malone, while in the exercise of the performance of his duties for the Southern Railway Company, was charged with the duty of protecting the plaintiff from the insults and indignities set out in said count. From all that appears to the contrary in said count, the plaintiff was assaulted and beaten as alleged in said count by persons not in the employ of the Southern Railway Company, and not having any connection with it."

J.T. Stokeley and R.H. Scrivner, both of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

DE GRAFFENRIED, J.

In the case of Batton and Wife v. South & North Alabama Railroad Company, 77 Ala. 591, 54 Am.Rep. 80, this court, quoting from Britton v. Atlanta & Charlotte Railway Company, 88 N.C. 536, 43 Am.Rep. 749, said: "The carrier owes to the passenger the duty of protecting him from the violence and assaults of his fellow passengers or intruders, and will be held responsible for his own or his servants' neglect in this particular when, by the exercise of proper care, the acts of violence might have been foreseen and prevented; and, while not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help, sufficient to protect the passenger from assaults from every quarter which might reasonably be expected to occur, under the circumstances of the case and the condition of the parties." In this same case this court said that the duty of a common carrier to a passenger while at a station awaiting the arrival of a train "ought not to be greater than that of an innkeeper, who is never held liable for trespass committed ordinarily by strangers upon the person of his guest."

In Beale on Innkeepers and Hotels we find the following "It is a duty of a carrier to protect his passenger from injury, and of an innkeeper to protect his guest from injury to the best of his ability, by the use of reasonable means. The innkeeper must take reasonable steps to protect his guests." Beale on Innkeepers and Hotels, § 174. An innkeeper owes to his guest the affirmative duty to protect his guest from an unlawful assault at the hands of a stranger, and from an assault of a servant not lawfully committed by such servant in resisting an act of violence--actual or reasonably apparent--at the hands of such guest. If an assault is committed by a servant of an inn upon the person of a guest in retaliation for an insult received by such servant at the hands of a guest, that fact, in a suit by the guest against the innkeeper for damages because of such assault, may be considered by the jury in mitigation of damages, but not as a complete bar to a recovery in the case. In the case of innkeepers (as in the case of common carriers) the fault of the guest short of...