Louisville & Nashville Railroad v. Penick

62 So. 965 | Ala. Ct. App. | 1913

WALKER, P. J.

— The court’s refusal to give written charge 2, requested by the defendant, is not a ground of reversal.- — Alabama Great So. R. Co. v. Robinson (Sup.) 62 South. 813.

The breach of duty complained of in the first count of the complaint was the alleged unwarranted ejection of the plaintiff from the train upon which she was a passenger before its arrival at the destination to which her fare had been paid, and to which she had acquired the right to he carried on that train. In stating the consequences of the alleged ejection it was averred that, “said train being in motion when plaintiff was ejected, she was thrown or caused to fall, was greatly jolted, jarred,” etc. It is contended that she could not have been entitled to recover under the count in question unless it was found from the evidence that the train was in motion when the ejection occurred, and that therefore the court was in error in refusing to give written charge 3, requested by the defendant. This contention cannot be sustained. Though proof of an ejection after the train stopped Avas variant from the allegation above quoted, the variance was not a material one. The substantial thing complained of was a wrongful ejection of the plaintiff from a train upon which she was entitled to remain until her destination had been reached. The other averments of the count showed a case of a wrongful ejection, conferring upon the plaintiff a right of action, whether or not it occurred AAdiile the train was in motion. A failure to prove that it was in motion at the time plaintiff was ejected was not a failure to prove a material feature of the alleged occurrence, considered as a breach of duty owing by the defendant to the plaintiff as a passenger. The above-quoted allegation was of matter o>f aggravation going to the question of the damages to which the plaintiff was entitled, but was not of material matter of description of the wrongful conduct complained of; and, to entitle the plaintiff to recover under the first count of the complaint, no more was required of her than to sustain by proof its material averments.- — Southern Ry. Co. v. Lee, 167 Ala. 268, 52 South. 648; Alabama Great Southern R. Co. v. McFarlin, 174 Ala. 637, 56 South 989; Central of Georgia Ry. Co. v. Thomas, 1 Ala. App. 267, 55 South. 443. From this conclusion it folloAvs that the court was not in error in refusing to give Avritten charges 3 and 9, requested by the defendant.

In view of the testimony as to the conductor saying to the plaintiff while she was being ejected from the train that she was “too damned slow,”,and that if they killed her they would pay for her, there is little merit in the claim that there was an absence of any evidence to support an award of damages for abusive or violent language used by tbe conductor. Written charge 1, requested by the defendant, was properly refused. — Birmingham Railway, Light & Power Co. v. Coleman (Sup.) 61 South. 890; Birmingham Ry., L. & P. Co. v. Glenn (Sup.) 60 South. 111; Snedecor v. Pope, 143 Ala. 275, 39 South. 318.

What has been said above disposes of the rulings which have been assigned as errors.

Affirmed.