Birmingham Railway, Light & Power Co. v. Nolan , 134 Ala. 329 ( 1901 )

HARALSON, J.

The complaint contained besides counts for simple negligence, one for having recklessly, willfully or ivanttonly, refused to put plaintiff off at 25th street in Bessemer, to which point she had paid her fare, and where the conductor, at the time she paid it to him, agreed to put her off. The case was tried on the plea of the general issue.

The proof, on the plaintiff’s part, tended to show that she paid the conductor her fare to her destination,— 25th street, — and when she paid it, she told him that she desired to get off at that street, and he said “All right;” that the train did not stop to let her off, when it reached her destina,tiom, but the bell cord was pulled by a gentleman for plaintiff, which attracted the attention of the conductor, who was told that the plaintiff desired to get off, and he replied), that “The train does ¡mot stop at 25th street, and the lady Avill have to go to the next station,” and thereupon, he gave the signal to the engineer to go ahead, which he did, anld plaintiff was carried to Woodward’s crossing, — about three-quarters of a mile from 25th street, — where she got off and had to walk back; that it was windy and cold, a,nidi the ground was wet and sloppy from snow that had fallen; that she got her feet wet and was taken sick, and has been sick nearly ever since, and that she required the attention of a physician, who paid her several visits.

The evidence of the defendant tended †/> show that the conductor did not undertake to put! plaintiff off at 25th street, when she paid him her fare, and that he was not guilty of reckless or wanton conduct, in the matter; that 25th street had been, for a, year or more, discontinued as a stopping place or station on the road, but there was no evidence that plaintiff knew that fact. The conductor testified that he had authority, as con-conductor, to stop a, train at any station.

Errors are assigned alone for the refusal to give the charges requested by defendant.

The court was requested by the defendant to charge the jury that they could not award punitive damages in the case; that they could award no more than nominal damages, and1 that if they believed tire evidence, they must find for the defendant.

To authorize punitive damages, the act complained of must be willful, or the result of reckless indifference to the rights of others, which is' equivalent to an intentional violation of them, or “where the injury has been wanton, or malicious, or gross,” — Wilkinson v. Searcy, 76 Ala. 181.

It is settled that the infliction of actual damage is not essential to the imposition of exemplary damages. A. G. S. R. R. Co. v. Sellers, 93 Ala. 9. If, then, in this case, the negligence of the conductor was so> gross as to evince an entire want of care, and was sufficient in the minds of the jurj to raise the inference that being cognizant of the probable consequences, he was indifferent to them, it was in their province to award exemplary damages. — A. G. S. R. R. Co. v. Arnold, 80 Ala. 601. We must hold, that under the evidence, apart from the charge of wantonness or willfulness, it was open to the jury to infer gross negligence on the part of the conductor. The court was not authorized, therefore, to take this question! from them. There was no error in refusing tire charges requested by defendant.

A motion was made for a new trial on the ground, among others, that the damages awarded were excessive. It was refused. We do not feel authorized, under the facts of the case; to set the judgment aside on that ground.

Affirmed.