Trott v. Birmingham Ry., Light & Power Co.

• Decision Date: 21 December 1905
• Citation: 39 So. 716,144 Ala. 383
• Parties: TROTT v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

39 So. 716

144 Ala. 383

TROTT v. BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

December 21, 1905

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

"To be officially reported."

Action by Martha M. Trott, as administratrix of the estate of Joseph Trott, deceased, against the Birmingham Railway, Light &amp Power Company. From a judgment for defendant, plaintiff appeals. Affirmed.

An action by Martha M. Trott, as administratrix of the estate of Joseph Trott, deceased, seeking damages for the death of her intestate, caused by a pistol shot inflicted by a conductor on defendant's railway line. The first count was withdrawn after it had been amended and after testimony was in. The second count was in the following words "Plaintiff claims of the defendant the further sum of $20,000 as damages, for that heretofore, to wit, on the 9th day of August, 1902, defendant was the common carrier of passengers for hire and reward by means of a car operated by electricity over and along the railway from Birmingham, to and by Mary Pratt Station, to East Lake, in Jefferson county Alabama; that on said day, defendant carried plaintiff as its passenger from said Birmingham to said Mary Pratt Station on said railway by means of said car, and while said car was at or near said Mary Pratt Station, and plaintiff was the passenger of defendant, one of defendant's servants or agents in charge or control of said car, to wit defendant's conductor thereof, assaulted and shot plaintiff with a pistol, and so wounded him that he died. All to plaintiff's damage $20,000, whereof she sues." Demurrers were overruled to this count, and issue was joined thereon.

Bowman, Harsh & Beddow, for appellant.

Tillman, Grub, Bradley & Morrow, for appellee.

TYSON J.

The complaint contains two counts. The first, after amendment upon conclusion of the testimony, was withdrawn, leaving the second, upon which was a verdict and judgment for defendant. The caption of the complaint shows the action to be by Martha M. Trott, as administratrix of the estate of Joseph Trott, deceased, while the second count predicates the right of recovery upon a duty owing to her as a passenger and a breach of that duty; the allegation being that "defendant carried plaintiff as its passenger from said Birmingham to said Mary Pratt Station on said railway by means of said car, and while said car was at or near said Mary Pratt Station, and plaintiff was the passenger of the defendant, one of defendant's servants or agents in charge or control of said car, to wit, defendant's conductor thereof, assaulted and shot plaintiff with a pistol, and so wounded him that he died." Manifestly the plaintiff in her representative capacity as the administratrix of Joseph Trott, deceased, cannot recover for any injuries suffered by her personally, and, therefore, no cause of action is stated. And, if she was killed by the shot, she certainly cannot maintain an action. But, if the words "so wounded...