Southern Railway Co. v. Wildman

119 Ala. 565 | Ala. | 1898

COLEMAN, J.

The action Avas by the appellee, as administrator of John G. Patton, and was instituted to recover damages for wrongfully causing the death of plaintiff’s intestate. The complaint consisted of tAvo counts. The first averred that plaintiff’s intestate Avas a passenger upon the train, that he purchased a ticket, and was riding upon the train as such passenger, when defendant’s negligence caused or allowed him to fall from the train, etc. As to this count, the court gave the defendant the affirmative charge. As the verdict was for the plaintiff on the second count, no question is before us raised by the first count. We will not, therefore, consider the question as to Av'hether, under the facts of the case, the plaintiff Avas a trespasser or a passenger entitled to the protection of the defendant corporation. Lampkin v. Railroad Co., 106 Ala. 287.

The second count avers that defendant, through its servant or agent, recklessly and wrongfully or intentionally knocked or shoved plaintiff’s said intestate from said train Avhile same Avas in rapid motion, and in consequence thereof said intestate was so injured that he died. Construing the pleading most strongly against the pleader, it must be taken that the complaint sIioavs that plaintiff’s' intestate Avas riding without authority and Avas at the time of the injury a trespasser. Although the deceased Avas a trespasser, the plaintiff would be entitled'to recover, upon sufficient proof. — Mobile & Ohio R. R. Co. v. Seales, 100 Ala. 368; Ala. Gr. So. R. R. Co. v. Frazier, 93 Ala. 45. A Avitness testified, that “the fare from Brookside to Coalburg is fifteen cents. Witness only paid ten cents. Paid it to the brakesman, Gibson.” The record proceeds: “The defendant here moved the court to exclude from the jury the statement that he paid the brakesman ten cents fare, on the ground that it is irrelevant and immaterial.” To authorize a reversal, the record must affirmatively show error. The natural inference from the record is, that the witness responded to questions propounded to him, to which no objection was raised. The laAV does not permit a party to speculate on the answers of a witness. The defendant should have objected to the question, or the record ought to show that the witness volunteered these statements, not in response to questions calculated to elicit such testimony. The rule that illegal evidence may be excluded at any stage of the trial, cannot be invoked by a party who has brought it out, or by one who acquiesces without objection to its introduction.

The testimony is in conflict, but there is evidence tending to shoAV that Gibson, the brakesman, knocked or shoved intestate from the moving train, and there is evidence tending to show that the conductor ordered the brakesman, Gibson, not to let any “tramps” or “hoboes” ride on the train.

The principal question involved in the refusal of the court to instruct the jury as requested by the defendant, is more directly presented in the seventh and eighth . charges. Pretermitting mere technical objections to the phraseology of these charges, they assert the proposition that if the wrongful act of the agent, Avas done not in the interest, nor in the prosecution of the business of the railroad company, the defendant cannot be held liable for such wrongful act. Counsel on both sides seem to concede that if instead of using the terms “not in the interest,” “nor in the prosecution of the business of the defendant,” the charge had said, “not acting within the scope of his employment or duties,” the charge would have been free from error.- — Ala. Gr. So. R. R. Co. v. Frazier, 93 Ala. 45; Mobile & Ohio R. R. Co. v. Seales, 100 Ala. 369; Lumpkin v. L. & N. R. R. Co., 106 Ala. 287. Appellant contends, that there is no difference in law, and that both propositions assert the same rule. There is no doubt that the principal is liable for the acts of the agent done in the interest df and in the prosecution of the business of the principal, if acting within the scope of his employment, and there are many decisions to this effect. We are of opinion the terms are not the equivalent of each other. “Scope,” as here used, signifies the “extent,” “sweep” of his authority, and is not limited to acts done in the “interest of,” or “prosecution of the business of the employer.” The words “interest of,” or “prosecution of the business of,” naturally would impress the average juror with the idea, that if the act ivas not done with the purpose or intent to promote the interest of, or in furtherance of the business of the employer, the employer could not be held liable. Certainly such a rule would restrict the liability of the employer within too narrow a compass. An employe who is given authority to eject trespassers riding upon a train, acts within the scope of his authority, when he ejects any person from the train, whether the person be of the class designated or not, and whether such acts, strictly speaking, be in the interest of the employer or not. The employer is liable for the willful, tortious acts of his servants, done within the scope and range of their employment, although the particular act was not authorized. — Williams v. Hendricks, 115 Ala. 277. If the phrases, “within the scope of his authority” and “in the interest of, or prosecution, of defendant’s business,” are the equivalent of each other, and so understood by the jury, the instructions of the court were full and fair to the defendant, and it could not possibly have suffered injury from the refusal of the charges requested.

We are of opinion there is no error in that part of the oral charge to which an exception was reserved. It is in accordance with the principles we have announced. From what has been said, it will be seen that there was no error in refusing the tenth charge requested. This charge is faulty as a legal proposition, in that it ignores the duty owing to -a passenger. — Lampkin’s Case, 106 Ala. 287.

The fourteenth charge is conceded to be faulty.

We find no evidence in the record that defendant exercised any diligence or care in the selection of its employe charged with the tort, and consequently hold that instructions twelve and fifteen are abstract. A discussion of the principle asserted in these charges would be mere dictum.

The court refused a motion for a new trial. It is evident that the plaintiff mainly depended upon the testimony of the two witnesses, Parrish and Brown, and it cannot be denied that the testimony of these two witnesses in many respects were in direct conflict. There is a very ancient authority, where the testimony of two witnesses, who no doubt were placed under the rule, was rejected on account of less flagrant and perhaps material discrepancies, than that of Parrish and Brown. (See Susannah’ trial, Book of Susannah, Apocrypha, Bible). Certainly the jury would have been authorized in discarding both. They are the triers, however, of the facts, and whether they credited both, or rejected one and believed the other, cannot be known. Applying the rule which we have declared in many decisions of this court, there was no error in overruling the motion for a new trial, either on the ground of newly discovered evidence, or that the testimony of the witnesses was contradictory. — Tenn. Coal Co. v. Stevens, 115 Ala. 461; Simpson v. Golden, 114 Ala. 336; Kansas City R. R. Co. v. Phillips, 98 Ala. 159; L. & N. R. Co. v. Bernheim Co., 113 Ala. 489. There is no error in the record.

Affirmed.

Head, J., dissents as to charge No. 8 by defendant. He thinks that charge ought to have been given.