61 So. 890 | Ala. | 1913
Belton W. Coleman brought this suit against the Birmingham Railway, Light &
There were two counts to the complaint. The first count charged the abusive language, and the second count charged the assault with the pistol.
There was the plea of the general issue, and also a special plea. This special plea, the appellant contends, was filed to both counts. The special plea was treated by the court below, and, as we read the plea, was properly treated by the court below as a plea to the second count only.
1. The facts show, beyond doubt, that appellant’s conductor did present a pistol at close range at the appellee, and they also show that when he did so he applied certainly one abusive epithet to appellee.
In civil, as distinguished from criminal, actions, an intent to injure is not essential to the liability of the person committing the assault. — Gariton v. Henry, 129 Ala. 479, 39 South. 924; McGee v. State, 4 Ala. App. 54, 58 South. 1008. “In fact, we think that at times courts have fallen into error in applying, or in attempting to apply, the rules applicable only to civil actions for assaults and batteries or trespass to the person to the facts in criminal prosecutions.” — McGee v. State, supra; Thomason v. Gray, 82 Ala. 291, 3 South. 38; Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42.
Under.the evidence of the conductor in this case (and his evidence was the most favorable evidence which was introduced on behalf of the appellant), the conductor
In the case of Birmingham Railway & Electric Company v. Baird, 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43, this court, referring to the right of a conductor in charge of a passenger train of a common carrier to assault a passenger on such train, said: “He cannot assault a passenger in retaliation for an assault committed upon himself or upon another passenger, and a fortiori he cannot assault a passenger for abusive words, or in revenge or punishment under any circumstances, and if he does assault a passenger otherloise than under a necessity to defend himself or a passenger from battery, or in rightfully ejecting a passenger Avho, by his conduct toward other passengers, has forfeited his right of carriage, the carrier is liable. The fault of the passenger short of producing a necessity to strike in self-defense Avill neither justify the conduct- or in striking nor relieve the carrier from liability for his act. Possibly such fault could be considered in mitigation of damages.” — Ala. City, G. & A. Ry. Co. v. Samply, 4 Ala, App. 464, 58 South. 974; Ala. City, G. & A. Ry. Co. v. Sampley, 169 Ala. 373, 53 South. 142.
We are therefore of the opinion that the trial court Avas free from error in giving charge 4 (which the reporter will set out) to the jury at the written request of appellee.
Charge 5 was, to say the least of it, calculated to confuse and mislead the jury, and for that reason was properly refused.
There is no error in the record, and the judgment of the court below is affirmed.
Affirmed.