83 So. 95 | Ala. | 1919
Lead Opinion
The plaintiff, appellant, stated his case against the appellee, a street railway company operating lines as a common carrier of passengers, in several counts, under the averments of five of which the testimony was taken. The allegation common to all of these counts defined the plaintiff's relation to have been that of a passenger at the time the wrongs averred were suffered by him at the hands of the carrier's motorman. The plaintiff's evidence went to show that as he was preparing to leave the car on which he was, in fact, a passenger the motorman commanded him to close the door through which he was passing from the body of the car to the platform; that, though in response to the command he told the motorman, in a civil manner, that another man behind him would close the door, the motorman upbraided him for not closing the door, and finally, while he was yet a passenger on the car, applied to him abusive and insulting language, and, after the plaintiff had alighted from the car, pursued him and struck him with the "controller," a heavy metal piece used in the operation of the motor, inflicting very severe injuries upon the plaintiff. The evidence for the defendant tended to contradict the plaintiff's contention that the motorman offended or abused the plaintiff in any way while he was on the car, while he was a passenger. The court submitted this controverted issue to the jury. In view of the allegation that the plaintiff was a passenger even when he was assaulted by the motorman, an essential prerequisite to the plaintiff's right to recover for the injuries resulting from the blow with the "controller," for injuries inflicted after the plaintiff had left the car, was that he should have been a passenger at the time. The trial court concluded that on the whole evidence the plaintiff's previous relation as a passenger had terminated before the plaintiff was assaulted by the motorman.
Differing in degree, at least, from the rule prevailing in other jurisdictions with respect to the time when the relation between a street railway carrier and a passenger ceases (10 C. J. pp. 625, 626; 4 R.C.L. pp. 1047, 1048, and notes), in this jurisdiction the accepted rule is that the relation is not terminated by the passenger's mere act of leaving the car, "but continues until he has a reasonable opportunity to leave the car and the roadway of the company," after the car has reached the station or stopping place to which he is entitled to be carried. Melton v. B. R., L. P. Co.,
The general rule applicable to carriers having exclusive control or occupation of its tracks, stations, and grounds for the reception and discharge of passengers cannot, in the nature of things, be applicable to a street railway carrier which receives and discharges its passengers in a public highway. 4 R.C.L. p. 1047, and note.
From a careful review of the whole evidence, this court concurs in the trial court's conclusion that the relation of passenger and carrier had terminated at the time the motorman assaulted the plaintiff, who had left the car and was moving therefrom over the public street in which he had alighted. It indisputably appears that the place where the plaintiff alighted was a public thoroughfare; that at the time of the assault the plaintiff had voluntarily alighted from the car; that he was then a step or two, at least, from the car, a pedestrian in the street, not a passenger of the carrier; that he had then left the car "and the roadway" as effectually and completely as if he had traveled 20 or more feet. The O'Brien Case, cited above, and other decisions delivered here where the question of the safety of the place of discharge of a passenger was a factor in the inquiry, contribute nothing to invite a different conclusion.
The fact (if so) that from the time of the application of offensive language by the motorman to the plaintiff, while the latter was yet a passenger, to the time the assault was committed on the plaintiff — after he left the car and was in the street — was a continuous transaction between the men could not avail to postpone the time when the plaintiff's relation as a passenger ceased, a termination of relation that was accomplished by the voluntary act of the plaintiff, not resulting from any compulsion on the part of the motorman.
The case of Alabama City, etc., Ry. Co. v. Sampley,
The remaining controverted issue under the evidence was whether the motorman subjected the plaintiff, while he was a passenger, to abuse or insult, in breach of the duty defined in Birmingham, etc., Ry. Co. v. Baird,
The trial court was well advised in its statement that the matter of self-defense, referred to in special requests for instructions, was not pertinent to the true issues on the trial, in view of the correct conclusion that the assault and battery occurred after the relation of passenger and carrier had terminated. It appears from the bill of exceptions that plaintiff's counsel assented to the court's statement that charges on self-defense were abstract — "in the view taken by the court of the evidence and the law" — a view that proceeded from a correct conclusion upon the whole evidence touching the time when the relation of passenger and carrier terminated, which was prior to the time when the motorman struck the plaintiff.
The judgment is not affected with error. It is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.
SAYRE and THOMAS, JJ., dissent.
Dissenting Opinion
I rest my dissent upon the authority of Ala. City, G. A. Ry. Co. v. Sampley,
Addendum
The brief for the rehearing insists that our conclusion of fact that plaintiff left the car voluntarily at his destination, is not justified by the undisputed evidence; that that matter was a jury question. A careful reconsideration of the whole evidence confirms the original conclusion. The alleged assault was committed at Sixty-Fifth street, in a public thoroughfare, where the cars customarily stopped to discharge passengers. There is no evidence whatever of an assault on the plaintiff by any one while he was on the car. The plaintiff's own testimony demonstrates the correctness of the court's conclusion on this matter. He testified:
"I was going to Sixty-Fifth street. I was working at night at Stockham Pipe Fitting Company, and I was going home in the morning. * * * I gave a signal for the car to stop at Sixty-Fifth street. I rung the bell. * * * When I gave the signal the car stopped. The door between me and the vestibule was closed. I rings the bell, and old man Charlie was sitting at the door, and he pulled the door open when I rung the bell, and I steps by, and the motorman asked me, 'Why don't you shut the door?' I says, 'The other man will shut the door;' and I stepped to the ground, and he followed behind me. I heard something behind me. I looked around to see what was behind me, and he landed me over the eye. As I was going out of the door the motorman said, 'Black __________, I will kill you.' I stepped on the ground, and he followed me out. I got a step or two, or two or three steps from the car, and I heard something behind me, and looked around and got the lick. After he hit me I said, 'What did you hit me for?' He says, 'Don't you stoop; * * * I will kill you.' I was like this (indicating). It must have been a pretty hard blow; it busted my eyeball out. I had gotten off there before that. That was the place where passengers waited to get on and off the car, there where I got struck."
Cross-examination:
"When I went by the motorman he asked me why I didn't shut the door. I says, 'The other man is going to shut the door;' the old man was trying to shut it. The motorman seemed a little horsey the way he spoke. He repeated it the second time, and said, 'Why in the hell don't you shut the door?' He got a little worser. When he said that I told him the man was going to shut the door. Then he said, 'Get off, you black __________.' At that time during this conversation the car was already stopped, and I was going by him. About the time the car stopped I was opposite him. * * * I didn't know where he was until he hit me. * * * He took the controller handle and stepped off the car, and followed me two or three steps I will say, three or four steps, something like that, and struck me without notice at all."
There is no other fact or circumstance disclosed by the evidence that tended to contradict the plaintiff's own statement, bearing on his voluntary departure from the car, or to show, in any degree, that plaintiff did not leave the car voluntarily, at his destination. It is insisted on the brief for rehearing that because, according to some of the evidence, the motorman said to the plaintiff, "Go on, you have said enough now," and "Get off, you black __________," as plaintiff was passing over the vestibule or platform of the car and down the steps leading to the ground, there was evidence before the jury tending to show that the plaintiff did not voluntarily leave the car. Since the plaintiff had already theretofore signaled the car to stop, at his destination (Sixty-Fifth street), and since he had left his seat in the car and passed through the door to the vestibule or platform where the motorman was in his place, in process of leaving the car, at his destination, it is not reasonably possible to attribute to these statements of the motorman an effect to show that the plaintiff did not voluntarily leave the car as he, himself, had indicated was his purpose in signaling the stopping of the car and in proceeding to leave it. The mere fact that the plaintiff might, had he desired, have ridden a greater distance on the car for the fare paid by him could not serve to institute a conflict in the premises, in view of the undisputed fact that as he approached his destination he signaled to stop the car and proceeded to leave it.
As pointed out in the original opinion, the case of Ala. City, etc., Ry. Co. v. Sampley,
The argument in the brief otherwise is, in effect, only directed to the application of the law touching the termination of the relation of passenger and carrier, as we were at pains to state upon established authority in the original opinion. Having left the car voluntarily, at his destination, and, according to his own testimony, walked a few steps in the public street, away from the car, the plaintiff's relation as a passenger had terminated when the alleged assault was committed upon him from the rear and without notice. Aside from the controverted issue with respect to the offensive language the plaintiff claims was applied to him by the motorman while the plaintiff was on the car, the plaintiff was transported safely to his destination, alighted voluntarily from the car in a public street, and was walking away from the car when, according to his *355
own testimony, he was assaulted without notice from behind by the motorman who had left his place on the car. In the brief for rehearing counsel cite 10 C. J. pp. 892, 893, stating that where an "assault commenced in the carrier's vehicle is kept up after the passenger has alighted therefrom," the carrier is liable for both the initial assault and for the attendant consequences flowing therefrom in natural sequence, and as a part of one continuous transaction. The doctrine of that text, as well as the pertinent doctrine of the Sampley Case, would have application here if the motorman had commenced an assault on the plaintiff while he was on the car. The case cited on the brief of O'Brien v. St. Louis Transit Co.,
While the grave injury which this plaintiff suffered from the blow struck by the motorman naturally awakens a just sympathy for his misfortune, yet that fact cannot be accorded influence in determining, under the undisputed evidence, the purely legal question: Had the relation of passenger and carrier ceased at the time the plaintiff was assaulted?
The application for rehearing must be denied.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.
SAYRE, GARDNER, and THOMAS, JJ., dissent.
