Louisville & Nashville Railroad v. Kay

62 So. 1015 | Ala. Ct. App. | 1913

WALKER, P. J.

— It is contended for the appellant that the third count of the complaint, upon which alone the case went to the jury, was subject to demurrer, on the ground suggesting its failure to show that the injury complained of occurred within a reasonable time before the departure of the train on which the plaintiff proposed to take passage. It is argued that the averment of the count on this subject was merely a statement of the conclusion of the pleader. If this is conceded, still it does not follow that the count was subject to demurrer on the ground mentioned. Its averments show that prior to the time of the commission of the wrong complained of, the plaintiff was in the waiting room of the defendant’s depot at Birmingham, and there applied to the defendant’s ticket agent for the purchase of a ticket to the place to which he desired to go, and was informed by the ticket agent that he could not sell him a ticket just at that time, but that if he would wait until a little later in the night he could sell him the ticket desired, that it was late in the night when this occurred, and that while plaintiff was waiting in said waiting room for the ticket agent to sell him the ticket, he was by another employee of the defendant, acting within the line and scope of his employment, subjected to the mistreatment which is complained of. These averments sufficiently show that at the time of the commission of the alleged wrong the plaintiff was in the defendant’s waiting room by the implied, if not express, invitation of the ticket agent for him to remain there until he was afforded an opportunity to buy the desired ticket. Being there at that time upon the invitation of the defendant to do business with it, the latter owed him a duty not to subject him to such mistreatment as that complained of, whether or not he had acquired the right to remain in the waiting room until the arrival of the train he expected to take. — Louisville & Nashville R. Co. v. Glasgow. (Sup.) 60 South. 103; Elliott on Railroads, §§ 1258, 1641.

The court cannot be put in error for its action in overruling the objection of the defendant to the question asked the witness G-win, which is referred to in the second assignment of error. The objection was a general one, except in that it suggested that the question called for hearsay testimony, which it did not do. The question did not call for testimony plainly illegal and irrelevant,, and it was not objected to on the ground now pointed out in argument. — Alabama City, G. & A. Ry. Co. v. Ventress, 171 Ala. 285, 54 South. 652.

What caused the plaintiff’s witness Swann to abandon the purpose, which he stated he had when he went to the station, of taking a train to Attalla was not a fact relevant to any issue in the case. If an inquiry as to this matter was permissible at all, it was for the purpose of testing, on the cross-examination of the witness, the accuracy or credibility of his testimony. The scope of the cross-examination for such purpose rests largely in the discretion of the trial court. — Southern Railway Co. v. Brantley, 132 Ala. 655, 32 South. 300. It is not made to appear that the court, in sustaining the plaintiff’s objection to the question as to what made the witness change his mind about going to Attalla the next- morning, abused its discretion, or thereby put an undue restraint upon the exercise by the defendant of its right of cross-examination.

It is contended in behalf of the appellant that the question as to whether or not the plaintiff presented himself at the- defendant’s station, and was ejected therefrom, within a reasonable time before the departure of his train was .a question of laAv for the court, and not a question .of fact for the jury, and that, the court erred in the parts of its oral charge which were excepted to, by which this question was left to the jury. There was evidence tending to support the averments of the complaint above referred to. This being true, then, so far as the plaintiff’s right -to maintain the action Avas dependent upon his showing the rightfulness of his presence in the defendant’s station at the time of the occurrence complained of, the evidence to be looked to was not only that as to the length of time then to elapse before the train he proposed to take was due, but also that tending to prove that he had been expressly or impliedly invited to remain until the ticket agent was ready to sell him a ticket.

If the question of the rightfulness of the plaintiff’s presence in the station had been dependent alone upon his showing that he went there within a reasonable time before the train he was to take was due, as the evidence was not clear and undisputed as to what that time was, and as it could not be said that there was no room for doubt in reasonable minds as to what specific period should be regarded as a reasonable time under the circumstances disclosed, it seems that the question as to Avhat was a reasonable time might well have been regarded as one of mixed law and fact, proper to be submitted to the jury under appropriate instructions from the' court. — Tallassee Falls Mfg. Co. v. Western Railway of Ala., 128 Ala. 167, 29 South. 203; Jones on Evidence, § 175; 5 Am. & Eng. Ency. of Law (2d Ed.) 270. But Avhen not only the evidence bearing upon this inquiry, but the conflicting evidence as to the plaintiff’s being in the station at the time by the defendant’s invitation, express or implied, for the purpose of doing business with it, might be looked to in determining whether or not he was in the waiting room, under circumstances entitling him to complain of the alleged mistreatment, the conclusion seems to be well warranted that the question as to whether or not he was rightfully there at that time so far involved disputed matters of fact as to make it one proper to be submitted to tbe jury, under appropriate instructions of tbe court as to1 tbe principles of law to be applied in determining it.

At any rate, as tbe evidence in tbe case was not sucb as to justify tbe court in saying, in effect, on tbe theory that it showed without' dispute that tbe plaintiff went to tbe station an unreasonable length of time before bis train was due, that it did not show that tbe defendant owed him a duty at tbe time of tbe occurrence complained of, tbe defendant could not have been prejudiced by instructions under which the plaintiff could not recover unless tbe jury should-find from tbe evidence that be went to tbe station within what tbe jury found to be a reasonable time before bis train was due.

We find no error in tbe part of tbe oral charge which is referred to in tbe seventh assignment of error. Tbe part excepted to is to be considered in connection with other parts of tbe charge. In other parts of its charge tbe court made it plain that tbe plaintiff was not entitled to a verdict except by sustaining tbe averments of bis complaint. Tbe evidence of tbe use of abusive or derogatory language in reference to tbe plaintiff tended to show sucb circumstances of aggravation as to warrant tbe submission to tbe jury of tbe question of awarding punitive damages. — Sparks v. McCreary, 156 Ala. 382, 47 South. 332, 22 L. R. A. (N. S.) 1224. Garrett v. Sewell, 108 Ala. 521, 18 South. 737.

What already has been said sufficiently indicates tbe grounds of tbe conclusion that neither of tbe other assignments of error can be sustained.

Affirmed.