Nashville, Chattanooga & St. Louis Ry. v. Moore

41 So. 984 | Ala. | 1906

WEAKLEY, C. J.

— This is the second time this case has been before the court; The report of the decision on the former appeal, which was taken by the plaintiff, Moore, contains an extensive statement of the evidence on each side; and the tendencies of the evidence, as shown by this record, are not variant from what they were on the first trial.—Moore v. N. C. & St. L. Ry., 137 Ala. 495, 34 South. 617. The ejection of the plaintiff from the car Avas not denied; it Avas sought to be justified-upon the ground that plaintiff Avas intoxicated, and while in that condition used obscene, abusive, or profane language, in the presence of the passengers, the pleas further averring the use only .of such force as was necessary to accomplish the object. The assignments of error, upon which appellant insists, are predicated upon several rulings on evidence, and the refusal to give three separate charges requested in Avriting. There was a motion for a neAV trial, Avhich Avas overruled, although the trial judge required a reduction of the damages aAvarded by the jury. No assignment of error complains of the denial of a new trial, and hence no inquiry arises upon the action of the jury in deciding the controverted questions of fact for the plaintiff.

The assignments of error directed to the refusal of the court to alloAV the Avitness, Stewart, to answer questions, which sought to elicit from him tire statement that the passengers or lady passengers Avere very much annoyed by the plaintiff, are not available to appellant, for the reason, if, for no other, that the witness had already testified that the lady passengers were very much annoyed by the plaintiff, and that testimony was not AvithdraAAm from the jury. . The question: “Did Moore’s conduct on that occasion annoy the ladies and passengers in that car?” Avas, however, propounded to the witness, Noel, and disalloAved upon objection by the plaintiff, and this ruling is made the basis of an assignment of error which must be noticed. The argument of counsel pretermits consideration of the inquiry, AAdiether the question called for an opinion or conclusion merely, rather than for a fact, and rests his contention as to the propriety of the question alone upon the assertion that the annoyance1 vel non of passengers is a material issue in the case. We do not discover, however, that it was a material issue. The important inquiry, under the pleas and the statute, in this connection, was whether the plaintiff used the language of the character attributed to him. It was of no consequence whether it actually annoyed the passengers or not; the statute (Code of 1896, § 3457) malees no requirement that the language of the defined character shall be offensive to passengers; and the pleas are merely that the removal of the plaintiff was necessary to prevent their annoyance. All the facts constituting the res gestae might have been and we think Avere given in evidence, and this was sufficient. Under the statute, proof of the conduct or language it condemns raises up a conclusive presumption of such disturbance of the peace and quiet, to Avhich passengers upon the Apellide of transportation are entitled, as justifies the ejection of the disturbing passenger by the use of the requisite degree of force. The court, therefore, committed no error in its ruling upon the objection to the question above quoted, and in similar rulings in reference to attempts to have other ivitnesses testify in general. terms, without details, that passen-ers Avere annoyed.

Evidence that passengers called upon the conductor to remove plaintiff did not tend to disprove the averment of the complaint that the removal was wilful as appellant contends; and no other suggestion in support of such evidence is made. The passengers had no control over the conductor, nor was he bound to accede to their requests. The existence of the facts essential under the plea and under the staute constituted his sole justification, and the minds of the jury should not be distracted from the true inquiry by evidence of what passengers requested. The conductor was present and witnessed all that occurred; he was informed of all that the passengers knew; and the most that could be affirmed of a request from them is that they were of opinion on the facts tlie plaintiff should be removed. Their opinion thus expressed could not be thrown into the balance. It is not and cannot be successfully contended that the request was a part of the res gestae. There are authorities which hold that under some circumstances exclamations of bystanders1 are admissible, but this case is not within the rule they declare. The question calling for similar testimony from the witness, Noel, was objectionable for the same reason, besides being open to the criticism that it assumed plaintiff was guilty of misconduct, and of the use of improper language. The testimony of the witness, Martin^ and other witnesses were very full, in respect of the plaintiff’s alleged conduct and language, and the record shows the defendant had the fullest opportunity to present all the details of the occurrence to the jury. The difficulty under which appellant is laboring is that the jury believed the plaintiff’s witnesses, or did not believe the pleas had been proven; and further inquiry in that behalf is upon this record forestalled. Under these circumstances, the exclusion of the mere comparative statement from the showing for the witness, Martin, that plaintiff “became more abusive than ever,” not giving the language employed, could not operate to inflict any substantial injury upon the defendant; and while it might not have been improper to permit the statement to go to the jury, its exclusion was not reversible error.

Charge 1, refused to defendant, is identical with charge 3 which was given on the first trial. Upon the former appeal it was held the giving of the charge did not constitute reversible error, because the criticism directed against it was that the charge had a tendency to mislead. Per contra, it may also be said that it was not an error to refuse a misleading charge or one having a misleading tendency. The charge had such tendency in that it omitted any statement of the qualification that, in ejecting a passenger for the causes mentioned in section 3457 of the code of 1896, the conductor may use “only such force as may be necessary to accomplish the removal”; and the jury might have been led to believe by the charge requested that the conductor was justified in his action, without reference to the degree of force employed.

There was no error in refusing charge 2. Section 4345, Or. Code of 1896, has no application to the case. We have held that it does not apply to a civil action even for assault and battery against the party committing the assault.—Mitchell v. Gambill, 140 Ala. 316, 37 South. 290.

Charge 5 was properly refused. It pretermitted inquiry into the degree of froce employed to overcome resistance; and besides, asserted as a fact, that the act of the plaintiff rendered it necessary for the conductor to eject him, and that plapntiffsi resistance was the cause of the injury. Charges which assume the. existence of facts as to which the evidence is conflicting or which draw inferences for the jury are erroneous, and should always be refused.—Conrad v. Gray, 109 Ala. 130, 19 South. 398. This disposes of all the assignments of error that are insisted on in brief of appellant’s counsel. The case was fairly and fully tried. We may assume from want of any complaint in that regard that the law was satisfactorily presented to' the jury in the court’s oral charge; the controversy was entirely one of-fact which the jury has settled, and we are unable to discover any error in any matter of substance.

Let the judgment be affirmed.

Haralson, Dowdell, and Denson, JJ., concur.