Southern Ry. Co. v. Nelson

• Decision Date: 03 April 1906
• Parties: SOUTHERN RY. CO. v. NELSON.
• Court: Alabama Supreme Court

41 So. 1006

148 Ala. 88

SOUTHERN RY. CO. v. NELSON.

Supreme Court of Alabama

April 3, 1906

On Rehearing, June 30, 1906.

Appeal from Circuit Court, Limestone County; W. R. Walker, Special Judge.

"To be officially reported."

Action by William W. Nelson against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed on rehearing.

Humes &amp Speake and Cooper & Foster, for appellant.

Callahan & Harris, for appellee.

DOWDELL J.

The complaint as originally filed contained five counts, and was subsequently amended by the addition of two other counts. The cause was submitted to the jury on the first count; the remaining counts having been eliminated or withdrawn. The first count proceeded upon the theory of a breach of duty by the defendant as a common carrier to the plaintiff while the latter was being transported as a passenger on one of its trains. This count sufficiently avers the relationship of passenger and carrier, as also the duty owing to the plaintiff for the alleged breach of which damages are claimed. In such case the relationship of carrier and passenger being averred, it is not necessary to allege that the servant or agent who violated the duty imposed by law on the defendant to its passenger was acting within the scope of his authority at the time of the alleged breach of duty. Birmingham Railway & Electric Co. v. Baird, 130 Ala 334, 30 So. 456.

The demurrer to the first count of the complaint was properly overruled. The contention of counsel for appellant that there was no breach of duty on the part of the railroad company for that the appellee, Nelson, was carried safely and expeditiously between the termini of his journey, is without merit. The carrier owes to its passenger something more than the duty of safe and expeditious carriage to the passenger's point of destination. As was said in Birmingham Railway Company v. Baird, supra: "As to them [the 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, from indignities, and from personal violence. And it is not material 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, or a fortiori from the particular servant upon whom the duty of protection peculiarly rests. In all such cases the carrier is liable in damages to the injured passenger." Here the wrong complained of was that the defendant's conductor, while the plaintiff was yet a passenger on defendant's train, falsely charged that the plaintiff had refused to pay his fare for his carriage as a passenger on said train, and upon arriving at the point of plaintiff's destination, viz., the city of Huntsville, immediately upon plaintiff alighting from the car pointed him out to police officers for the purpose of having him arrested. The relationship of passenger and carrier is not necessarily terminated by the safe transportation of the passenger to the carrier's depot or station at the destination of the passenger's journey, and not until the passenger has had reasonable time after disembarking from the train to leave the depot premises of the carrier. 2 Am. & Eng. Ency. Law (1st Ed.) 745. Here the alleged insult, indignity, or wrong complained of was perpetrated upon the plaintiff by the defendant's conductor immediately upon the plaintiff alighting from the train at the defendant's station or depot in the city of Huntsville. The relationship of carrier and passenger had not at this time been terminated. It is alleged, and there is evidence tending to support the allegations, that the defendant's conductor accused or charged the plaintiff with having ridden on the train from Decatur to...