Southern Ry. Co. v. Haynes

• Decision Date: 21 May 1914
• Docket Number: 657
• Citation: 186 Ala. 60,65 So. 339
• Parties: SOUTHERN RY. CO. v. HAYNES.
• Court: Alabama Supreme Court

65 So. 339

186 Ala. 60

SOUTHERN RY. CO. v. HAYNES.

No. 657

Supreme Court of Alabama

May 21, 1914

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by T.A. Haynes against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Knox Acker, Dixon & Sterne, of Anniston, for appellant.

Ross Blackmon and Merrill & Walker, all of Anniston, for appellee.

MAYFIELD J.

This is an action by a passenger against a carrier to recover damages for an assault and battery committed by a third party while plaintiff was in defendant's depot or waiting room. The actionable negligence or breach of duty relied upon to charge the carrier with liability is as follows:

"That one Hall, the servant and agent of the defendant in charge of said depot, had knowledge of the danger that was impending to plaintiff, and was informed that said assault was impending, or had knowledge that it was necessary to intervene in order to protect this plaintiff, and said servant or agent knowing failed or refused to discharge the duty devolving upon him of interfering or intervening in order to protect the plaintiff, and such negligence on the part of such servant or agent on the part of the defendant resulted in the injury to the plaintiff herein above set forth."

It is first insisted by appellant (defendant below) that the complaint was defective in not stating sufficient facts to show a duty to protect plaintiff from the assault and a breach of that duty. One notable insistence is that there is a total lack of allegation that the agent of the defendant had knowledge or notice of the intended assault in time to have prevented it. This element of liability is not alleged in words, but is alleged in effect or substance.

The complaint, or counts A and 3 on which the case was tried were practically copied from counts held good by this court in the case of Culberson v. Empire Coal Company, 156 Ala. 417, 47 So. 237. It is insisted by appellant that the above case was, in effect, though not expressly, overruled by the later case of Southern Railway Co. v. Hanby (Ala.) 62 So. 871. We do not think the two cases are in conflict. The allegations in the two complaints were not at all similar. In Hanby's Case there was no allegation similar to the one in this case, that the--"agent in charge of the depot had knowledge of the danger that was impending to plaintiff, and was informed that said assault was impending."

This is a material allegation, and helped to supply the defect pointed out in the Hanby Case, supra. The insistence of counsel for appellant as to the defect in the counts in this case is well answered in the Culberson Case, supra.

There was no error in allowing the plaintiff to show that he did not continue his trip for which he had purchased his ticket on the night of the assault. This evidence was clearly relevant.

There was no error in declining to allow the witness Stewart to give his opinion that there was not sufficient time for the agent to interfere after Brown addressed plaintiff, and before he struck him. The witness should have stated the facts, and let the jury draw the conclusion.

There was no error in refusing to allow the defendant to...