Travis v. Louisville & N.R. Co.

• Decision Date: 19 June 1913
• Citation: 183 Ala. 415,62 So. 851
• Parties: TRAVIS v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

62 So. 851

183 Ala. 415

TRAVIS v. LOUISVILLE & N.R. CO.

Supreme Court of Alabama

June 19, 1913

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Action by B.M. Travis against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The substance of count 1 sufficiently appears. Count 3 alleges the operation by defendant of a dining car where it sold articles of food to passengers for immediate consumption guaranteeing the same to be pure and wholesome, and on a certain day, through its agents or servants, sold and served to plaintiff in said dining car for immediate consumption which plaintiff then and there immediately consumed as food tainted, deleterious, or unwholesome oysters, as a proximate consequence of which plaintiff was made sick and sore, etc.

The following charges were given to the jury at the instance of the defendant:

"(1) Plaintiff is not suing in this action for any violation of defendant's duty to him as a passenger on its train.

"(2) It matters not whose duty it was to inspect the oysters before service; if you believe from the evidence that they were fresh, wholesome, and sound, defendant is not liable to plaintiff in this action."

"(4) The mere eating of the oysters by plaintiff and the fact that he was sick afterwards does not by itself show any negligence on the part of defendant.

"(5) If you believe from the evidence that the oysters served and furnished plaintiff on the occasion mentioned were purchased by defendant in bulk in due course of trade from a reputable dealer in a market house in New Orleans on the morning of the day the same was served, and that they were fresh so far as defendant could know or ascertain by inspection, and were in such condition at the time the same was served to plaintiff, then your verdict must be for defendant."

"(3) In no event can the plaintiff recover for loss of time if you believe from the evidence that he received his wages for the time he was sick."

"(6) The gravamen of this action is the negligence of defendant in serving oysters to plaintiff. The plaintiff has alleged such negligence on the part of defendant, and I charge you, as a matter of law, that he cannot recover without proof of such negligence, and, if from all the evidence such negligence has not been proven to your reasonable satisfaction, your verdict should be for the defendant.

"(7) You cannot find for the plaintiff unless the evidence reasonably satisfies you that the injuries complained of were the result of eating tainted, deleterious, or unwholesome oysters, negligently furnished by defendant; and, if you believe from the evidence that said injuries were produced by any other cause, your verdict must be for the defendant."

(10) Affirmative charge as to third count.

"(11) Plaintiff has alleged, in the only count now before you for consideration, that defendant furnished plaintiff unwholesome, deleterious, or tainted oysters, and if the evidence fails to establish to your reasonable satisfaction the negligence of defendant in this respect, or if said evidence fails to establish to your reasonable satisfaction that the oysters furnished were tainted, deleterious, or unwholesome, and that the injuries complained of were caused by reason thereof, your verdict should be for the defendant.

"(12) If you believe from the evidence in this case that any oyster served to plaintiff on the occasion mentioned in the complaint was unsound or unwholesome, putrid, or spoiled, and this fact was unknown to defendant, and could not have been discovered by defendant in the exercise of reasonable care, and was not in such condition knowingly served by the defendant to plaintiff, your verdict must be for defendant.

"(13) Before you can find a verdict for plaintiff in this case, you must be reasonably satisfied by the evidence that the oysters in this case consumed by plaintiff were tainted, deleterious, or unwholesome, and that they caused the sickness of plaintiff, and that such condition of the oysters was on account of the negligence of defendant, its servants or agents."

"(16) In the absence of negligence on the part of defendant, its servants or agents, you cannot find for the plaintiff."

"(14) If any one of your number is not reasonably satisfied from the evidence that the plaintiff is entitled to recover, you cannot find a verdict for plaintiff."

"(18) The defendant is not liable as an insurer of the oysters served to plaintiff, and therefore is not liable if he was made sick by eating them, unless the jury believe from the evidence that defendant was guilty of negligence.

"(19) The court charges the jury that plaintiff cannot recover under the second count of the complaint without the evidence showing to your reasonable satisfaction that the oysters consumed by plaintiff were tainted, putrid, deleterious, or unwholesome.

"(20) If you believe from the evidence that defendant inspected said oysters through its chief cook or chef before they were fried and served to plaintiff, and that they were wholesome, sound, and fresh at that time, then defendant discharged the duty that it owed to plaintiff and will not be liable in this action."

"(8) The defendant is not a guarantor under the law of the soundness of each and every oyster furnished to fill the orders of plaintiff, and if you believe from the evidence that defendant exercised ordinary care in the selection, keeping, and preserving of the oysters to be furnished to its customers, including the plaintiff, on the occasion mentioned, and that it did not knowingly furnish in filling plaintiff's order an oyster or oysters that were tainted, putrid, deleterious, or unwholesome, your verdict should be for defendant.

"(9) If you believe from the evidence in this case that the defendant and its servants and agents exercised ordinary care in the selection, purchase, and keeping of said oysters, then even if there was a spoiled oyster among same, and that same was served to plaintiff, your verdict must be for the defendant."

"(15) The burden is upon the plaintiff to show some negligence on the part of defendant, its servants or employés, as to the selection of said oysters."

"(17) If you believe that the oysters served to plaintiff were purchased from a reputable dealer on April 7, 1910, in bulk and in a bucket in the usual course of such dealings in such articles as food stuffs, and were in an apparent fresh, safe, and sound condition so far as defendant knew or could discover by such inspection, then it is not guilty of any negligence in serving said oysters cooked as ordered by plaintiff and taken from said bulk."

J.B. Brown, A.A. Griffith, and F.E. St. John, all of Cullman, for appellant.

George H. Parker, of Cullman, and John C. Eyster, of Decatur, for appellee.

DE GRAFFENRIED, J.

The Louisville & Nashville Railroad Company maintains, for the convenience and comfort of its passengers, dining cars on some of its passenger trains. The plaintiff, B.M. Travis, was on April 7, 1910, a passenger of the defendant railroad company and some time that evening (probably about 7 p.m.) went into the dining car attached to his train and ate some fried oysters and some scrambled eggs. Shortly thereafter (perhaps 15 or 20 minutes) he was taken sick and his symptoms all indicated that his sickness was probably due to the food which he ate while in the dining car. This sickness of the plaintiff the plaintiff claims was a serious matter. He claims that he was confined to his bed for a long time; that his life was in serious danger; that he incurred much expense in apothecary and doctors' bills; and that he endured much physical pain and mental distress. The plaintiff is of the opinion that the oysters which were served to him in the dining car were spoiled and that they were the cause of all his distress. He is of the further opinion that the defendant's servants or agents were guilty of negligence in serving him the oysters in their alleged spoiled condition, and this suit was brought by the plaintiff against the defendant for the recovery of the damages which he alleges he suffered by reason of said alleged act of negligence on the part of the servants or agents of the defendant.

1. Section 7074 of the Code of 1907 provides as follows "Any butcher or other person who sells, or offers or exposes for sale, or suffers his apprentice, servant, agent, or other person for him, to sell, offer, or expose for sale, any tainted, putrid, or unwholesome fish or flesh, or the flesh of any animal dying otherwise than by slaughter, or slaughtered when...