Lampkin v. Louisville & Nashville Railroad , 106 Ala. 287 ( 1894 )

HARALSON, J.

— In Goddard v. Grand T. R. Co., 37 Me. 202, s. c. 2 Am. Rep. 39,in discussing the question now before us, the court says: "The carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully ; and if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. * * * He must not only protect his passengers against the violence and insults of strangers and co-passengers, but a fortiori, against the violence and insults of his own servants.” To the same effect, is the case of the Chicago & E. R. Co. v. Flexman, 103 Ill. 546, s. c. 42 Am. Rep. 33, in which it is held, that a contract exists between a common carrier and its passengers, to use all reasonable exertion to protect its passengers from insult-or injury-from fellow passengers, and which, is, also, a guaranty on behalf of the carrier that it will protect them against personal injury and insult from the agents in charge of the train. Any other rule, it is there well said, would place the travelling public at the mercy of any reckless employé a railroad company might see fit to employ, greatly impairing the personal security of the passenger. — Bryant v. Rich, 106 Mass. 180, s. c. 8 Am. Rep. 311; Croaker v. Chicago &. N. W. R. Co., 36 Wis. 657, s. c. 17 Am. Rep. 504, McKinley v. Chicago & N. W. R. Co., 44 Iowa, 314, s. c. 24 Am. Rep. 748; Shirley v. Billings, 8 Bush. 147; N. O., St. L. & C. R. Co. v. Burke, 53 Miss. 200.

The same question has been well considered in this State, and it may be regarded as settled, generally, as declared above. And the line has, also, been carefully and distinctly drawn, between such acts asare here complained of, when committed by an agent of the railroad, while acting in the line and discharge of his duty, and when committed by him as an individual, and not connected with his service to his company. — L. & N. R. R. Co. v. Whitman, 79 Ala. 328 ; Lilley v. Fletcher, 81 Ala. 234; Railroad Co. v. Frazier, 93 Ala. 45 ; Mobile & Ohio R. R. Co. v. Seals, 100 Ala. 368 ; Collins v. Ala. G. S. R. R. Co., 104 Ala. 390 ; Gilliam v. R. R. Co., 70 Ala. 269, and authorities cited in these cases.

It sufficiently appears from the complaint, that the acts charged were committed on and to the plaintiff, while he was a passenger on the defendant’s train, by a brakeman in the service and employment of the defendant, while in the discharge of his duties as such, when he owed and could not deny protection to the plaintiff, and could not willfully insult and maltreat him in'the manner alleged. The demurrer to the complaint was improperly sustained.

There was nothing in the objection, that in the caption of the minute entry of the judgment, the clerk employed the initial letters, “L. & N. R. R. Co.,” for the corporate name of the defendant, and that said entry will not, for that reason, support this appeal against the defendant-company .

In the summons and complaint and all other papers in the cause, the corporate name of the defendant is set out in full. These, when referred to, show plainly enough who the defendant is, as indicated by these initial letters. It was an irregularity, however, which should be avoided in such proceedings. — Bolling & Son v. Speller, 96 Ala. 270 ; Blackman v. The Moore & Handley Hardware Co., infra.

Reversed and remanded, to the circuit court of Morgan county; the city court of Decatur having been abolished.

Bricicell, C. J., not sitting.