130 Ala. 334 | Ala. | 1900
There appears to be some divergence of opinion as to a common carrier’s liability for an assault, and the like, committed -by its agent upon a passenger when the agent is acting beyond the scope of his employment in the usual acceptance of that phrase. Of course the law is well settled that for torts committed by such agents, or employes upon persons who are not passengers the employer is not liable unless the act was in a sense in the line of duty imposed by the employment, as where a conductor of a train being under duty to the railway company, and having authority to eject persons not entitled to carriage commits, out of his own malice and personal ill will toward such a person, an unnecessary assault upon him in ejecting him from the train, the wrongful act, though against the express rules and regulations of the carrier, is yet within the scope of the conductor’s employment and the company would be liable in damages for it; but the reverse would be true — the company would not be liable— if such conduit or should assault a person standing by the side of the train, for instance, and having no relations with the carrier, nor in any way encroaching upon the rights of the carrier, for in this latter case the wrongful act of the conductor would have no connection with his duties to the company and would be entirely beyond the scope of his employment. Such is the law as between trespassers and strangers generally, on the one hand, and the carrier on the other. But as between the carrier and its passengers an entirely different rule prevails. As to them the contract of carriage imposes upon the carrier the duty not only to carry safely and expeditiously between the termini of the route embraced in the. contract, but also the duty to conserve by every
Of course, a conductor has the right of self-defense against the assault of a passenger; but the right is the same in this connection as in criminal law. He must be imperiled and he must be without fault. To be sure he need not retreat from his car. And he may assault a passenger when necessary to protect other passengers from assault, using no more than necessary force and this may become a duty — indeed it is a duty whenever it is a right. But he cannot assault a passen
The present action is prosecuted by Baird, a minor, by next friend, against the Birmingham Railway & Electric Company and sounds in damages for an assault and battery alleged to have been committed by one Sorsby, conductor of defendant’s train upon -which plaintiff was a passenger. That the assault and battery -was committed is proved beyond question and not denied. It is not only not shown that the conductor was justified in the act, but to the contrary it clearly appeal*® that he assaulted and beat the plaintiff without legal necessity or excuse. Foir while one or two
The case was tried below on views of the law and theories of the rights of the parties which were far too favorable to -the defendant. The doctrine of scope of employment was given in charge to the jury, when, as we have seen, that doctrine does not obtain in cases of tliis. character. Then too it was given ifi charge to the jury that plaintiff’s right of recovery depended upon ■the further inquiry whether he or Sorsby was at fault in bringing on the difficulty, “that the plaintiff’s right to recover in this case depends upon who was the aggressor, and that if the plaintiff was the aggressor he cannot recover,” when, as we have declared, no aggression on the part of plaintiff short of producing a neces,-sity for Sorsby to strike in defense of his person against physical harm would be a defense to the carrier. Very many charges were refused to the defendant. Those numbered respectively 1, 2, 3, 4, 5, 6, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27, were each properly refused as being affirmatively, or having a tendency, opposed to -the principles above set forth.
Charges 7 and 8 are mere arguments.
Charges 9, 11, 12, 13 and 14 are affirmative instruc
The clauses'of the court’s general charge to which exceptions were reserved really meant that the jury had a right on the evidence to impose punitive damages; and unquestionably they had such right. If it was apprehended that the form of expression might mislead the jury, an explanatory charge should have been requested. Charge 9 refused to defendant had a tendency to mislead the jury to the conclusion that they were not authorized to impose punitive damages.
The several exceptions reserved by the defendant to rulings on the competency of testimony and to rulings relating to the argument of plaintiff’s counsel, have been considered by the court en lane, and found to be without merit. We shall not further extend this opinion by -a discussion' of them.
All the questions arising on -the motion for a new trial except one are covered by what we have said. The one not so covered has reference to the amount of the verdict, twenty-five hundred dollars, which is claimed to be excessive. We by no means think the recovery was for too great a sum.
Affirmed.