45 So. 156 | Ala. | 1907
— The action is by a passenger against the carrier for an alleged breach of duty in refusing to transport the plaintiff from Leesburg to Tuscaloosa Crossing; his debarkation at Gadsden, short of the desired destination, being required by the conductor of the carrier. The trial was by the court without the jury; and the judgment, founded, of course, upon the conclusion that the duty existed and was breached, was for the plaintiff for f 1 as damages.
It affirmatively appears from the record that no loss in estate was suffered by plaintiff, as the proximate result of the wrong complained of, except the necessitated expenditure by him of 50 cents for the services of a hack to his home near the crossing; nor was his health impaired or his physical or mental comfort disturbed, by the short journey in the hack. And we may add that there was no conduct aggravative of the wrong inflicted. So the only question for consideration is: Should the recovery have been of punitive or vindictive damages, for the violation of the plaintiff’s right to be reasonably and safely carried and allowed to disembark at his desired destination, short of which he was discharged? Nothing is better understood than that the awarding of exemplary damages is not a necessary result of an estab
The record fails to convince xxs that the txfial judge erroneously interpreted, iix this connection, the testimony offered in the caxxse. The transaction, as stated by the plaintiff, may be taken in all strength, and yet the defendant’s servant cannot be said to have been guilty of the measure* of gross negligence or wantoxi disregard iix x’espect of plaintiff’s right to be carried to the destination desired as to justify the infliction of exemplary damages. Oxx this testimony alone there was an entire want of passion on the part of the conductor or the plain
The only other errors assigned relate to the striking of counts 1 and 2 in response to demurrers thereto. There was nn error in this. The counts do not aver with sufficient certainty that the crossing was one of the places at which that train was scheduled or was wont, within the rule as to custom, to stop for the taking on and discharge of passengers. Such was the prerequisite of the duty to carry and discharge the plaintiff there, and the failure to clearly aver that condition to liability rendered the counts bad.
There is no error in the record, and the judgment is affirmed.
Affirmed.