82 Ala. 218 | Ala. | 1886
— Plaintiff, Heddleston, purchased from defendants ticket-agent, at Epes’ Station, a ticket from that place to Stewart’s Station on the same road. A train approaching, going in the direction of Stewart’s Station, the ticket-agent informed plaintiff that was his train, and he got aboard. He did not discover he was on a train which did not stop at Stewart’s, until it was under headway, and the .mistake could not be entirely remedied. The testimony. u.p to this point is rvithout conflict.. Conceding that no injury, insult or even discourtesy, was offered to plaintiff, the mistake of the ticket-agent gave him a right to sue the defendant, and recover the actual damages he had sustained from such mistake.- — S. & N. Ala. R. R. Co. v. Huffman, 76 Ala. 492, which collects the authorities.
Charges 1 and 3, asked by defendant, were rightly refused on the principles stated above. Eor the same reason, the explanatory charge given, after giving charge 5 asked by defendant, was free from error. Charge 2 asked by defendant was misleading, and properly refused. — Dorgan v. State, 72 Ala. 173.
It is contended for appellant, that the present suit must fail, because there was a variance between the allegations and proof; that the complaint is for a wrongful and forcible ejection from the train, while the proof failed to establish this charge, and only showed the ticket-agent’s misdirection, as to the proper train he should go on. A full answer to this is, that the complaint sets forth and counts on both causes of action. When such is the case, it does not prevent all recovery. The plaintiff succeeds to the extent the proof sustains, his allegations, and only fails to the extent his proof fails. Suing for two torts, and proving only one, affects only the extent of the recovery, If it be thought the damages assessed were disproportionate to the injury, this is a question.which could have been raised in the court below on a motion for a new trial, but, under our system, can not be raised in this court.
Affirmed.