58 So. 974 | Ala. Ct. App. | 1912
The plaintiff brought this suit against the defendant for recovery of damages which he alleges in the fourth count of his complaint, upon which count the case was tried, he suffered by reason of an assault and battery which Avas committed upon him by the defendant’s conductor Avhile the plaintiff was traveling as a passenger upon one of the defendant’s cars between Alabama City and Gadsden, Ala. This is the second appeal in this case, and it seems to us that the opinion rendered by the Supreme Court on the first appeal (Alabama City, Gadsden & Attalla Ry. Co. v. Sampley, 169 Ala. 373, 53 South. 142) has settled the legal questions presented by the pleadings and the evidence.
On the other hand, the defendant’s evidence tended to shoAV that the conductor assaulted the plaintiff after the plaintiff had left the car, and had ceased to be a passenger of the defendant, or within the protection of the defendant as such passenger. As Avas said by the Supreme Court in its opinion above cited in this case: “The question vital to this case and about which the evidence Avas in sharp conflict was Avhether defendant’s conductor attacked plaintiff before he had alighted from the car, the rest folloAving uninterruptedly, as plaintiff contended, or Avhether on the contrary defendant’s conductor, having been dragged from the car step by plaintiff and possibly one of his companions, after the latter had alighted from the car, or in any casé Avhether the conductor did not defer this atack until plaintiff had gone some fifteen feet aAvay from the car. Each of these versions found support in the evidence. On defend
We do not think it is necessary for us to discuss the .question as to Avhether the fourth count of the complaint as amended Avas subject to the defendant’s demurrer. The most casual examination of this count shows that it is not wanting in the averments Avhich are set up as objections to it in the demurrer.
We find no error in the record, and the judgment of the court below is affirmed.
Affirmed.