Birmingham Ry. L. & P. Co. v. Turner

McCLELLAN, J.

This action is by a passenger for an alleged wrongful ejection. The count of the complaint on Avhich the trial Avas had charged the negligence resulting in plaintiff’s ejection to have been that of a conductor of defendant (appellant) in incorrectly marking or punching a transfer ticket, which was by him given plaintiff in order to prove his right to another conductor of another line of street railway of defendant to transportation as upon the undertaking to carry plaintiff for and in consideration of one fare over both lines. The count is sufficiently definite, in its averments descriptive of the negligence charged, under the liberal rule with which such averments have long been treated in this court. — Southern Ry. Co. v. Burgess, 143 Ala. 364, 42 South. 35. The ground of demurrer taking this objection was properly overruled.

The count avers an undertaking to carry plaintiff over both lines for one fare; and to sustain this averment it was essential to his recovery to establish to the reasonable satisfaction of the jury that it was the duty of -the conductor of the first car to issue to him a transfer ticket to the second car to which he desired to transfer. If it was his duty so to do, then, of course, his authority to that end existed, and a failure to issue a serviceable transfer ticket would render the defendant liable for injuries suffered in consequence. An affirmance of such authority would conclude the existence of the duty stated, and a denial of it would refute the existence of such duty. The plaintiff testified, in part, as follows: “I boarded the North and South Highlands car and paid my fare. Before that time, and until and at this time, the defendant charged five cents for both fares, giving a transfer from one line to the other. They were issuing transfers then.” Opposed to this testimony, which tended to show the custom, authority, and duty in the premises, however subsequent testimony given by the plaintiff might be deemed to have qualified the conclusion deducible from the statement quoted, was that of officers of the defendant who explicitly denied this custom, authority, and duty in respect of the issuance of transfer tickets over or between these lines. This obvious conflict compelled the submission of the inquiry to the jury, which was done. A careful review of the testimony, on the vital issue stated, does not justify us, we think, in disturbing the verdict rendered on the ground of'its want of substantial support in the evidence.

The question to the witness Wood, as to the character of tickets used by the defendant at that time appears to have been answered before the objection was made; hence it came too late.— Washington’s Case, 106 Ala. 58, 17 South. 546. Where the answer is made so immediately upon the conclusion of the question as to deny opportunity to object, manifestly a different rule would obtain.

Whether the damages assessed are excessive must, of course, be referred to the evidence adduced. Apart from the elements of damages specially claimed on account of the physical condition of the plaintiff at the time of his ejection, and which were brought by him to the attention of the conductor demanding his departure from the car, the measure and elements of damages generally recoverable in such cases are stated in L. & N. R. R. Co. v. Hine, 121 Ala. 284, 25 South. 857. The testimony shows plaintiff to have had at the time typhoid fever, to be weak, and- to have fainted during that afternoon. While the phvsician attending him testified to the absence of any aggravation of the malady by the additional walk taken after and because of the ejection, yet he also testified that quiet was prescribed for persons afflicted with that disease. The plaintiff testified to his own discomfort, in his weakened condition, resulting from the exertion incident to the walk to his home. Notwithstanding the fact that he had exerted himself, during that afternoon, to such an extent as to possibly induce the conclusion contrary to his contention and testimony, we cannot affirm, under the facts stated, that the damages awarded are excessive. The amount given finds support in the evidence, and there is nothing present indicative of a disposition to oppress.

The ground of the motion for a new trial, that the amount of the verdict was improperly arrived at, was not .sustained in proof. The slips of paper found in the jury room were not shown to have been written upon or 'made by the jury; and, on the contrary, the affidavit of Barbour, a juryman, is to the effect that the verdict was not fixed by the quotient method. The alleged appropriation by counsel, and a denial of it by opposing counsel on demand, of the paper found in the jury room, certainly, in the absence of proof that the jury used the paper, or the figures on it, in reaching a verdict, was no ground for a new trial whatever penalty, if the charge were sustained, should have been inflicted by the court in the premises.

We have considered 'all assignments insisted on in brief of counsel, and find no error in the record. The judgment is affirmed.

Affirmed.

Tyson, C. -T., and Dowdepp and Anderson, J-J., concur.