Birmingham Railway, Light & Power Co. v. Mullen, 138 Ala. 614

Birmingham Railway, Light & Power Co. v. Mullen

138 Ala. 614 | Ala. | 1903

HARALSON, J.

The witness, McDonald, for the plaintiff had testified, that he witnessed the alleged assault on the plaintiff by the conductor; that it grew out of the conduct of one Crumpton, who appeared to be drunk, and who was traveling as a passenger in company with the plaintiff and others. The conductor had threatened to eject Crumpton from the car, on account of the profane' language he was using, when the plaintiff said to the conductor: “If you try to put him off, you will have to both of us off.” The conductor had also charged Crumpton with having pulled fhe bell cord, which Crumpton denied, and the witness stated, over objection by defendant, that the conductor replied, that “he was a <1 — n liar, he did do it.” The plaintiff’s counsel asked the witness, “how many times, if at all, did the conductor curse in talking to Crumpton?” to which question defendant objected as calling for immaterial evidence The evidence was part of the res gestae of the alleged assault, and What was said and done by each of the parties to the transaction was legitimate to be stated.

2. Assignments of error from 3 to 10, inclusive, related to 'the same matter — whether it was competent for plaintiff to prove the age, height and weight of plaintiff which was allowed to be done. Apart from any effort to put the plaintiff off the train and in connection with the evidence tending to show that the conductor assaulted him, the jury might well consider the *623age and relative sizes of the parties. — Thomason v. Gray, 82 Ala. 292; Wilkins v. State, 98 Ala 2.

3. The objection to the question, the basis of the assignment of error 11, was that the question was not in rebuttal, to anything brought out by defendant. It was within the discretion of the court to allow it. Besides, it was in rebuttal. The defendant had asked the Avitness Cheek, on cross, if he had not heard the plaintiff say the conductor did not have sense enough to run the car — the same matter about which the Avitness, McDonald, Avas interrogated in rebuttal, by plaintiff.

4. Smith, for plaintiff in rebuttal, testified, that he was present at the difficulty. The attempt Avas made by defendant to shoAV that plaintiff said the conductor Avas such a d — n fool he did not know how to run a train. He Avas asked by the plaintiff, if plaintiff made the remark, that he, the Avitness, could have heard it, or Avas close enough to have heard it. The defendant made a general objection to the question. It was competent for the Avitness to ansAver it. — McVay v. State, 100 Ala. 111; A. G. S. R. R. Co. v. Linn, 103 Ala. 135.

■ 5. There Avas no error in the charge of the court for plaintiff numbered 10, — that abusive language or opprobious epithets alone never justify the commission of an assault by a conductor of a train upon a passenger. This Avas declared to be the law in B. R. & E. Co. v. Baird, 130 Ala. 350. Nor Avas there any thing of Avhich the defendant could complain in giving the one for plaintiff, numbered 11.

6. Charge 1 refused for defendant seems to assume that there Avere mitigating circumstances in the assault alleged to have been committed by the conductor, and for this was properly refused.

.7. Charges 2 and 3 requested by defendant Avere properly refused. They seem to assume and instruct the jury as a fact, that Crumpton Avas drunk. The evidence is very persuasive that he was drunk, but there Avas (widenee, of tendencies such, as made it proper for that to haAre been left to the jury. Smith, aa'Iio Avas present, testified to the fact that Crumpton Avas under the influence of liquor. He said: “he had been drinking' — -he *624wasn’t drunk. * * I cannot tell lie was drunk, but I can tell lie was under the influence of liquor.” J. F. Chitwood, who was also present and saw the crowd plaintiff was with, testified: “I cannot say whether any of them were drunk; They were looking pretty lively,, after I got on the car, but after the racket was over, they did not talk like they were drunk.” If the tendencies of the evidence to show that Crumpton was not drunk, were weak, as compared with other evidence that he was, the fact, whether he was drunk or not, as we have said, was for the jury' to determine. These charges were properly refused, for this reason, as well as for other faults not noticed.

8. Charge 4 is subject to the same vice. Moreover, it directs that the assault, which plaintiff’s evidence tends to show was committed, was proper, if used in an honest and proper effort to eject plaintiff from the car. .The burden was on the defendant to justify the assault, and to show that it was necessary; and if the conductor honestly but mistakenly supposed he was justified, this would not exempt the defendant from liability. As we have said, he had no right to strike the plaintiff in ejecting him from the car, unless it was necessary to defend himself from an assault first made upon him, and it was for the jury to determine, from all the facts, if the assault was proper in an effort to eject plaintiff. The charge falls short of these wholesome principles. — *• B. R. & E. Co. v. Baird, supra.

9. Charge 5 was properly refused. It was argumentative, and instructed as a justification for the assault, (which the conductor was prohibited from making, except to defend himself from an assault first made by plaintiff on him), the words alleged to have been used by plaintiff, viz.: “If you put Crumpton off you will have to put me off.” These words, if used by plaintiff, did not justify an assault. by the conductor on him, neither for making it, nor to mitigate damages therefor.

For the same reason, and from what has been said above, charges 6, 7, 8 and 9 were properly refused.

*625We have examined the evidence in the case, and are unable to conclude that the court erred in refusing the motion for a new trial, on any of the grounds for which it was asked.

Affirmed.