Alabama City, G. & A. Ry. Co. v. Sampley , 169 Ala. 372 ( 1910 )

SAYRE, J.

Suing as a passenger, appellee claimed damages for an assault and battery at the hands of defendant’s conductor; The fourth count alleges that plaintiff was, on an occasion specified, a passenger on one of defendant’s cars, and that while he was a passenger defendant’s conductor in charge of the car did assault and heat him. No good purpose was served by incumbering the count with the averment of details. On a principle to he referred to presently it may have been that plaintiff’s right to a passenger’s immunity from abuse and mistreatment by defendant’s servants extended beyond the time when he was actually upon the car. In stating his case, therefore, it was not essential that plaintiff should allege that he was upon the car. The general averment that he was a passenger at the time of the wrong and injury complained of was sufficient, and the count was not demurrable.

Plaintiff, with two companions, got upon the defendant’s car at Attalla for passage to Alabama City. This was between 9 and 10 o’clock in the evening. The car stopped at Alabama City, hut it appears that plaintiff and his companions were unfamiliar with the route, and failed to alight there. Afterwards, when the conductor demanded a second fare for transportation to Gadsden towards which point the car was moving, as ordinarily lie was entitled to do, an altercation arose as to whether he had announced the Alabama Oity station. Defendant assigned fault in bringing on the controversy to the fact that plaintiff’s party had been drinking, and this theory had substantial support in the evidence. However that may have been, no conduct of the party while they remained upon the car, such as would, excuse an assault upon the plaintiff, was shown. — Birmingham Railway & Electric Co. v. Baird, 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43. The question vital to this case, and about which the evidence was in sharp conflict, was whether defendant’s conductor attacked plaintiff before he had alighted from the car, the rest following uninterruptedly as plaintiff contended, or whether on the contrary, defendant’s conductor, having been dragged from the car step by plaintiff, acted in defense of himself against an attack made upon him by plaintiff, and possibly one of his companions, after the latter had alighted from the car, or in any case, whether the conductor did not defer his attack until plaintiff had gone some 15 feet away from the car. Each of these versions found support in the evidence. On defendant’s version of the facts least variant from that put forward by plaintiff, namely, that although the conductor was not justified on the ground of necessary self-defense, he deferred his attack until plaintiff had safely gone his way some 15 feet from the car, the conductor’s wrongful act was without the range of his employment, and the defendant was not liable. — Gilliam v. S. & N. A. R. Co., 70 Ala. 270. On plaintiff’s contention as to the facts defendant was responsible, we think, not only for the initial assault but for such consequences as followed therefrom in natural sequence and as a part of one continuous transaction. Common carriers are obliged, not only to carry passengers, safely, but also to conserve by every reasonable means their comfort and safety throughout the journey, and protect them from indignity, insult, and personal violence whether from other passengers, strangers, or employees. — Birmingham Ry. & Electric Co. v. Baird, supra. The relation, and the duties arising out of it, continues until the passenger is safely landed at his destination. — Montgomery St. Ry. Co. v. Mason, 133 Ala. 508, 32 South. 261; Birmingham Light & Power Co. v. Anderson, 163 Ala. 72, 50 South. 1021.

Counts 3, 7, and 8 contained an averment that defendant’s conductor did also permit and suffer other persons to assault and beat plaintiff. Count 3 was stricken on demurrer, and this averment, on the day of the trial, was eliminated by amendment from counts 7 and 8. Frost, one of plaintiff’s companions on that occasion and a witness for him at the trial, testified without objection that while plaintiff and conductor were fighting on the ground, some person ran from the car and struck plaintiff. The witness was then permitted, over defendant’s objection, to testify that the conductor did not undertake to prevent the other person striking plaintiff. It must be presumed here that counts 7 and 8 had not yet been amended, because the record leaves the matter at large, and this presumption favors the ruling of the trial court.- — Kelly v. Burke, 132 Ala. 245, 31 South. 512. In this status .of the case the question and answer were directly responsive to one of the issues presented by the pleading. It is true beyond question that on the evidence as a whole and as it finally appeared, defendant’s conductor neither knew nor had any reason to anticipate that the third person was about to assault plaintiff', and, therefore, that neither the conductor nor the -defendant, under the circumstances obtaining at the moment, were responsible for that assault. But the court was not required to antici pate the final failure of plaintiff’s proof in respect to responsibility for this assault, nor was its action invoked on the ground that on the case, as it then stood, defendant could not be held .responsible. Plaintiff’s remedy against this testimony was by motion or charge on the conclusion of the whole evidence.

On cross-examination defendant asked the witness Frost: “You hadn’t said anything to raise a row?” We cannot put the trial court in error for sustaining an objection to this question, though the court, in its discretionary control of the cross-examination, might-well have allowed it. Defendant had no absolute right to have the witness sit in judgment whether anything lie had said was calculated to bring on a difficulty between plaintiff' and the conductor. If the question, on its other permissible interpretation, intended to ask whether the witness had said anything with the purpose of bringing on the difficulty, it asked for a purpose wholly foreign to the merits of the difficulty which resulted in an assault upon plaintiff by the conductor. Those merits were to be determined upon consideration of what was said and clone rather than upon any secret, uncommunicated purpose of the witness. There is, of course, nothing in the- exception to the admission of the testimony of this witness, on redirect examination, to the effect that he had told the conductor, when he paid his fare, where he wanted to get off. This testimony was a literal repetition of what the witness had responsively sworn in answer to a question by the defendant.

This witness was permitted to testify that he did not know when the car passed through Alabama City, and that he became aware of that fact after the car had passed that point. Whether the fact that plaintiff and his companions, of whom this witness was one, remained on the car after it had stopped at Alabama City, was attributable to the fault of the conductor in failing to announce the station or to the drunken carelessness and inattention of plaintiff’s party — either inference being open to the jury — was not conclusive of plaintiff’s right one way or the other. But the assault upon plaintiff having followed upon a wordy wrangle concerning the failure of plaintiff’s party to get off at Alabama City, it was proper to put the jury in possession of facts by which they might locate the fault as shedding light upon the respective contentions and to mitigate damages in the event that contention should be determined against the defendant.

There was no error in sustaining objections to the questions addressed to plaintiff by defendant, and made the subject of assignments of error 15 and 16. They asked for mere conclusions.

We do not understand why at one time defendant was denied the right to have an answer to its question to the conductor concluding: “Just tell what each of them said,” referring to the plaintiff and his party. This was error, and must result in a reversal of this case. The matter asked for was of the res gestae, and material for purposes already indicated. Defendant may have had the benefit of a similar question at another time, but, if so, the fact is not made to appear.

Appellant assigns for error several parts of the court’s oral charge to the jury. We need not approve them as an altogether adequate statement of the law of the case. The complaint of them is that they were so phrased as to convey to the jury the idea that the carrier became an insurer of plaintiff’s safety while a passenger. But we think that when the charge in its entirety and the issues of fact presented by the evidence are referred to, it appears that there was nothing in the charge which requires reversal. Those parts of the charge to which exceptions were taken laid down the duty of the carrier to safely carry its passenger without statement of the extent or degree of the care and diligence to be employed in the discharge of that duty. At another point the charge informed the jury that a carrier does not insure the safety of its passenger. But the issues of fact presented by the pleading and the evidence were such that no statement of the law in respect to the degree of care to be exercised in carrying the passenger, or in protecting him from attack, was necessary to a correct disposition of the case. The corn-pi aint went upon an assault and battery suffered by plaintiff while a passenger and at the hands of defendant’s conductor then and there charged with plaintiff’s safety. There was evidence to support the complaint, and in the event the jury found with it, they must have found a breach of an absolute duty in respect to the performance of which there were no degrees of diligence. On the other hand, the defense rested upon the theory that the relations of carrier and passenger had ceased to exist at the time of the assault, so that the defendant owed plaintiff no duty in guarding him against the conductor’s assault. For the solution of the issues thus presented it.was not necessary to state the law in respect to the duty a carrier owes its passenger in the operation of its conveyance, or in respect to taking precaution against assault from others than those to whose care the passenger is directly committed.

By written charge 2 the defendant sought to impose upon the plaintiff the burden of satisfying the jury. Such charges have been repeatedly condemned by this court as exacting too high a degree of proof. Plaintiff was required to satisfy the jury reasonably only. — Torrey v. Burney, 113 Ala. 496, 21 South. 348; Lawrence v. Alabama State Land Co., 144 Ala. 530, 41 South. 612.

Charge 3 was design ed, it seems, to predicate defendant’s acquittal on proof of the defense set up by the plea that the defendant’s conductor acted in the necessary defense of his oivn person. Our opinion is that the predicate of the charge follows the predicate of the plea in every substantial particular, and that the charge should have been given.

We have examined every assignment of error insisted upon in this case. For the errors indicated, we are of opinion that the judgment below must be reversed.

Beversed and remanded.

Simpson, Anderson, and Mayfield, JJ., concur.