Moore v. Nashville, Chattanooga & St. Louis Railway , 137 Ala. 495 ( 1902 )

TYSON, J.

The motion of appellee to dismiss the appeal because no judgment ivas rendered by the trial court upon the verdict of the jury must be denied. — Bell v. Otts, 101 Ala. 186; 1 Freeman on Judgments, § 2.

The order of the court allowing thirty days for the preparation and signing of the bill of exceptions is sufficient.

The complaint alleges a Avrongful ejection of the plaintiff by the conductor from one of the cars of defendant onto the platform of said car and from there to the ground resulting in injuries to his person. The defendant filed five special pleas, numbered 2, 3, 4, 5, and 6. All' of them except the sixth are in form pleas of contributory negligence. They are, hoAArever, really an attempt to justify the conduct of the conductor in ejecting the plaintiff under section 3157 of the Code. As pleas of justification they are manifestly insufficient. While they aver the disorderly conduct of the plaintiff, they do not aver that the conductor used only such force as AA'as necessary to accomplish his removal from the car. The demurrer interposed to each of them should have been sustained. The sixth Avas also bad. It averred substantially nothing more than that the conductor at the time lie ejected the plaintiff Avas acting as a police officer of the State by virtue of the power conferred upon him by section 3457. The fact that he Avas clothed with the authority of a police officer and acted in that capacity on the occasion of plaintiff’s ejection, does not relieve his company, the defendant, from liability if he Avas not justified in, the exercise of that authority or if in the exercise of it he used more force than Avas necessary.

We are unable to see the relevancy of the testimony offered by plaintiff that he applied to his son to loan him fifteen cents; or that cursing or profane language Avas used bv others who Avere on the outside .of the car. Nor Avas there error in excluding the request to Head by plaintiff “to take care of him’’ after lie! had received the injuries complained of. None of these matters were a part of the res ge-stae of the transaction and could shed no light upon the material issue in the case.

Charge six requested by plaintiff was properly refused. The negligence of the conductor in leaving the plaintiff on the platform, after ejecting him from the car, knowing that he was so drunk as- to be unable to take care of himself, is not counted on in the complaint, and could not, therefore, be made the basis of a recovery.

Charge No. 2 given a't the request of defendant was improper. It invaded the province of the jury and asserted an incorrect proposition of law. While it may be true as asserted in that it was right and proper for the defendant- to pay the expenses of its witnesses, yet, the fact that, its witnesses were transported by it to the place of the trial free of charge: and their hotel bills paid is a circumstance tending to show bias- and was proper matter for the consideration of the jury. — Ala. Great So. R. Co. v. Johnston, 128 Ala. 283. This being true, it was clearly error to instruct the jury as matter of law the fact that defendant paid the expenses of its -witnesses “has nothing to do with the issues in the case.”

The only objection urged aganst charge 3 given for defendant is that it was misleading. Tt asserted a correct proposition of la-w, and if its tendency was to mislead, this should have been corrected by requesting an explanatory charge.

Conceding that charge 5 was abstract, the giving of it is not reversible error. — 2 Mayfield’s Dig., pp. 565, 573.

In conclusion, it may not be amiss 'to say, that we cannot concur in the view urged by appellee-’s counsel that it was entitled to the affirmative charge a.nd, therefore, if error was committed, it was without injury. The testimony was in direct conflict unon every material issue of fact presented by the pleadings.

Reversed and remanded.