Tomme v. Pullman Co.

Whether count 1 was or was not subject to defendants' demurrer, the action of the trial court in sustaining same was without injury to the plaintiff, as he got the full benefit of said count under count 2, as the gravamen of the action charged or attempted in count 1 is identical with that set out in count 2, and the establishment of count 2 required no more proof than count 1. In fact, it required less.

It is well settled by the decisions of this as well as other courts that, while it is the duty of common carriers to protect their passengers against violence or insult, whether from their servants or strangers, the liability of the carriers to protect from misconduct of others arises only when the wrong is actually foreseen in time to prevent the misconduct, or it is of such a nature and perpetrated under such circumstances that it might reasonably have been anticipated. This duty to protect passengers is not confined to the carrier's vehicle, but extends throughout the continuation of the relation. The degree of care, however, varies with time and place; a high degree of care being required while the passenger is on the vehicle, and only ordinary care while the passenger is waiting at the carrier's station. N.C. St. L. Ry. v. Crosby, 183 Ala. 237,62 So. 889; Montgomery Traction Co. v. Whatley, 152 Ala. 101,44 So. 538, 126 Am. St. Rep. 17.

While the law requires a high degree of care on the part of the carrier's servants to protect the passenger while on the vehicle from injury or insult from another when the wrong is actually foreseen, it only requires ordinary care and prudence in foreseeing or anticipating the threatened violence or insult. In other words, if the defendants knew of the intoxicated condition of McGarrity, and that it was such that they could reasonably foresee, or anticipate, that he would probably insult or injure the plaintiff's wife, they owed her a high degree of care to use all reasonable precaution to protect her. We know of no rule of law, however, that required the defendants' servants to be expert in ascertaining the intoxicated condition of McGarrity, or in foreshadowing the probable consequence of same. True, carriers are chargeable with a high degree of skill and care in the conduct of their trains, the equipment of same, and in the selection of those charged with the control and operation of same; but this does not mean that the servants so selected shall also be skilled in matters not pertaining to the equipment, operation, and management of the trains, and that they shall possess a more sensitive smell or keener vision in detecting the intoxicated condition of a passenger than the ordinarily experienced and prudent person. Hence the rule declared in B. Ry., L. P. Co. v. Barrett, 179 Ala. 274, 60 So. 262, does not apply to the duty of the defendants' servants in the discovery or ascertainment of McGarrity's condition and in anticipating or foreseeing the consequences thereof. We do not think that the charges embraced in assignments of error 10, 11, 12, 18, 22, 23, 24, 25, 28, 32, and 33 are in conflict with the foregoing rule, or possess any infirmity which rendered the giving of same reversible error. It is true the latter part of charge 11 could have been more aptly worded, by requiring a high degree of care to prevent the infliction of the injury; but it does not require the exercise of "all reasonable precautions to prevent such injury," and which is the necessary equivalent of the degree of care required by law under the existing conditions and surroundings, as a high degree of care did not and could not call for the exercise of unreasonable precautions.

The trial court did not err in giving the defendants' charge 20. It is not confined to the knowledge of facts or circumstances at the time McGarrity went to his berth, but is broad enough to cover a knowledge of circumstances prior to his falling and overcomes the objection argued against same in brief of appellants' counsel.

Assignment of error 15 is so palpably without merit that a discussion of same can serve no good purpose.

The court, after a careful consideration of the evidence, is of the opinion that the trial court properly gave the general charge for the defendant as to wanton count 3.

Charge 15, given for the defendant, is bad. It is in effect the general charge, as it instructs the jury that in "no event" can there be a verdict for the plaintiff on account of injuries or damages which may have been sustained by the wife. True, as held in the former decisions of this court, the husband cannot recover for an injury to the wife in and of itself, but may recover for such injury when it produces such damage to her as to put the husband to the expense of caring for her, or deprives him of her services, society, etc.; and while he cannot recover for the injury alone, yet he cannot recover, except on account of the injury producing the damage to her and, to instruct the jury that in "no event" can the husband recover on account of such injury or damage to the wife, notwithstanding she was injured, and notwithstanding said injury caused him damage, is in effect an instruction against his right to recover in this case. It may be true that the trial court did not intend to go to this extent in giving this charge, as gathered from the oral charge, as well as the plaintiff's given charge 1; but charge 15 is in conflict therewith, and, instead of being merely misleading, is bad. The oral charge and the plaintiff's given charge may be correct, yet giving charge 15 in effect instructed the jury that, notwithstanding the oral charge, or the plaintiff's given charge, you can in "no event" find a verdict for the plaintiff on account of the injuries or damages to his wife. The trial court committed reversible error in giving charge 15.

The fact being that the wife had previously done the household washing, and was, by the injury, rendered unable to do so, the reasonable cost to the plaintiff in getting it done would be a recoverable item of damage to him, but should not be fixed by what he had paid the laundry, in the absence of some proof that the sum so paid was reasonable.

The other objections to the rulings upon the evidence are without merit.

All the Justices concur in the opinion, except as to the criticism of charge 15. The majority, consisting of McCLELLAN, SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., are of the opinion, and so hold, that charge 15 is technically correct and is, at most, misleading, and that the misleading tendency was so explained or qualified by the oral charge as to remove the injurious effect of same and that the case should be affirmed.

The judgment of the circuit court is accordingly affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS, J., think that the giving of charge 15 was reversible error, and therefore dissent.

On Rehearing.