Birmingham Railway Light & Power Co. v. Lee , 153 Ala. 386 ( 1907 )

HARALSON, J.

— The plaintiff, appellee, recovered a judgment for $300 against the defendant, the Birmingham Railway, Light & Power Company, for wrongful assault alleged to have been committed upon her by defendant’s conductor, while plaintiff was a passenger on one of defendant’s electric cars which ran from Bessemer to Birmingham.

The contention of the plaintiff is, that she boarded one of defendant’s cars at Bessemer and paid the conductor the 10 cent fare to be carried as a passenger to a station called Hillman. She states, that she gave the conductor a 50 cent piece in silver, and he gave her back a quarter, a dime and a nickel, leaving 10 cents she paid him as fare to Hillman, which was the regular fare to that station.

The defendant’s contention is, that plaintiff only paid 5 cents, the regular fare to Brown’s, a station between Bessemer and Hillman. After the car reached Brown’s the conductor sought to collect an additional 5 cent fare from Brown’s to Hillman. A dispute arose between her and him, plaintiff insisting that she paid 10 cents, and the conductor, that she had only paid him 5 cents; and the conductor stopped the car and told plaintiff that she would have to pay the 5 cents or get off the train. She refused to pay it, and the conductor took hold of her, and when it became evident he was going to eject her from the car, a fellow passenger offered to pay her fare, when she told him not to do so, but the passenger paid it. The conductor, before this, took hold of her, as she testified, and dragged her to the door, inflicting on her serious personal injuries, which ended in her miscarriage soon afterwards, the plaintiff being pregnant at the time.

There was much dispute as to the amount of injuries she sustained, the evidence for plaintiff being, that she suffered great bodily harm, and that of defendant, that no such serious injuries were sustained, and that the conductor did nothing more than was necessary to eject her.

The complaint contained four counts, the first, third, and fourth, for a wrongful assault by the conductor, setting out the injuries she sustained; and the second, for wrongful, willful and intentional injuries inflicted on plaintiff.

Demurrers were interposed to the several counts, which were overruled. The defendant commendably admits these counts were good, and declines to insist on assignments of error for overruling same.

The case was tried on the plea of the general issue and special plea No. 2, of which plaintiff had the benefit, under the plea of the general issue.

We have examined the oral charge of the court to the jury. The defendant excepted to that portion of it as follows: “If you are reasonably satisfied from this evidence, that she paid this ten-cent fare, then a wrong ivas inflicted, upon her in attempting to put her off before she got to the end of her journey. It ivas a wrongful ejection or attempted ejection, and for that wrong she would be entitled to damages against the company.” This was not a charge, as insisted, on the effect of the evidence. The instruction was under hypothesis, “if the jury ivas reasonably satisfied, from the evidence, that she paid the 10-cent fare,” etc. The exception to the charge ivas hypercritical, and taken in connection with the entire charge, the instruction seems to have been eminently correct.

■ Nor was there any error, in that part of the court’s instruction, in its oral charge: “Of course she sues for $10,000, and cannot recover more than that.” It is always proper for the court to instruct, that the jury cannot in awarding damages go beyond the amount claimed in the complaint. Moreover, the sentence from which this excepted portion was taken, contains more than is excepted to, showing that the charge was very correct.

The same remarks are applicable to that portion of the oral charge, the basis of assignment of error No. 7.

There was no error in plaintiff’s given charge No. 1. It was under hypothesis on conflicting evidence, which was for the determination of the jury, as the charge left it.

Nor was there error in given charge No. 2, for plaintiff. The fact that the opening of the charge is not predicated on “the belief of the evidence by the jury,” is no argument against its validity. If without this the charge was deemed misleading, it was open to the defendant to ask an explanatory charge. — Hall v. Posey, 79 Ala. 84.

The instructions as to the amount of damages mentioned in the charge were not improper. The second count was for willfulness, which there was evidence tending to show, and the jury were authorized under it, to assess exemplary damages, if they saw proper. — 13 Cyc. 180. There was evidence tending to show wantonnenss or willfulness,. and charge 2 for defendant was properly refused.

Charges 6 and 7 for defendant were in direct opposition to evidence tending to show that plaintiff miscarried on account of the injuries inflicted on her. The plaintiff so swore, and other evidence corroborated her. They were properly refused.

Charge 8 was an improper instruction. It was misleading, and singled out and stressed a particular phase of the evidence. The jury were not necessarily to determine which of the witnesses told the truth, and which swore falsely. Some of them may háve sworn incorrectly, without being amenable to the charge of having sworn falsely. To tell the jury they must ascertain which of them “told the truth,” was too exacting an instruction, and did not leave the jury at liberty to give due weight to their evidence, and to reject it, if they thought it erroneous as being incorrect, though not technically false.

- “When there is conflict in the testimony of two wit: nesses which cannot be reconciled, regard must be had, in determining which one is mistaken, to the capacity of the witnesses, their respective opportunities of knowing the facts to which they depose, and the nature of the facts deposed to, as calculated' to' impress themselves with more or less force on the memory.” — Hitt v. Rush, 22 Ala. 563; Cain v. Penix, 29 Ala. 374; Bugbee v. Howard, 32 Ala. 718; Collins v. Stephens, 58 Ala. 545; 5 Mayfield, 264, § 30.

There was no merit in refused charge 9. If plaintiff: had paid her fare to Hillman, an assault and battery, under the undisputed evidence, had been committed on her, before an outsider offered to pay her fare. Moreover, plaintiff had the right, to refuse to allow this other person to pay her fare. Such payment by her consent, would have been an acknowledgment that she had not paid it, and the conductor was entitled to it, and in such case, she ivould have been in duty hound to refund it to this outsider. The charge ivas improper and misleading.

Finding no error, let the judgment below be affirmed'.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ.f concur.