Louisville N. R. Co. v. Robinson

THOMAS, J. The suit is for damages as for a failure to transport a passenger. When the averred facts show the relation of the parties and duty in the prem *524 ises, a breach thereof may be pleaded by way of conclusion (Alabama F. & I. Co. v. Bush, 204 Ala. 658, 86 So. 541; Mobile L. & R. Co. v. Ellis, 209 Ala. 580, 96 So. 773), and, when the facts are alleged out of which a duty arises, the pleading need not charge the conclusion that the duty existed. Maddox v. Jones, 205 Ala. 598, 89 So. 38. If the plaintiff had the right to enter the ear, and, in good faith, with the bona fide intention of becoming a passenger, had purchased and presented a ticket entitling him to ride in said ear, and, with the intention of becoming a passenger, attempted to board the car, and was wrongfully denied entrance, the relationship of' carrier and passenger existed at the time of his rejection. L. & N. R. R. Co. v. Harper, 203 Ala. 398, 83 So. 142; L. & N. R. R. Co. v. Glascow, 179 Ala. 251, 60 So. 103. No question of negligence vel non is presented or need be averred if plaintiff was unlawfully rejected when the relation of carrier and passenger existed. N. C. & St. L. R. R. Co. v. Crosby, 194 Ala. 338, 70 So. 7. The action is ex delicto. Wilkinson v. Moseley, 18 Ala. 288, 290, 291; White v. Levy, 91 Ala. 175, 179, 8 So. 563; Deavors v. Southern Express Co., 200 Ala. 372, 76 So. 288; Blythe v. Enslen, 203 Ala. 692, 85 So. 1. Tort action lies for injury caused by a breach of duty which a common carrier owes a passenger. L. & N. R. R. Co. v. Hine, 121 Ala. 234, 25 So. 857. The complaint held insufficient in B. R. L. & P. Co. v. Anderson, 3 Ala. App. 427, 57 So. 103, was not so specific as are counts 1 and 2 in this case. There was no error in overruling demurrer directed thereto. In the instant counts it is averred that plaintiff was attempting to get upon the car or vestibule thereof then in use for the carriage of passengers, and as it was standing still at the station, having stopped at such place and time according to schedule; thus distinguishing them from the indefiniteness pointed out by the court in the Anderson Case, supra. There was no reversible error in declining defendant’s motion to strixe. Improper damages, if claimed, must be eliminated by objection to the evidence or by requested instructions, and not merely by motion to strike or by demurrer. N. C. & St. L. Co. v. Campbell, 212 Ala. 27, 101 So. 617. When the relation of carrier and passenger exists, an insult to the latter by the former, resulting in humiliation and mental distress (without physical injury), will support an appropriate action for damages. N. C. & St. L. Co. v. Campbell, 212 Ala. 27, 101 So. 615; L. & N. R. Co. v. Harper, 203 Ala. 398, 83 So. 142; S. A. L. R. Co. v. Mobley, 194 Ala. 211, 222, 69 So. 614; B. R. L. & P. Co. v. Glenn, 179 Ala. 263, 268, 60 So. 111; L. & N. R. Co. v. Hine, 121 Ala. 234, 25 So. 857; L. & N. R. Co. v. Laney, 14 Ala. App. 287, 293, 69 So. 993 ; 4 Elliott on Railroads (2d Ed.) 961, 23 A. L. R. 388. Ani it is held that mental suffering may be inferred from wrongful acts having such natural ox-reasonable effect within the relation of the parties. Southern Ry. Co. v. Rowe, 198 Ala. 353, 73 So. 634. There was no error in the court’s oral charge as follows: “Now, gentlemen, if the plaintiff is entitled to recover any damages, he is entitled to recover what the law calls actual or compensatory damages. Now his actual damages, gentlemen, or compensatory damages, would be any damage that he suffered as a direct result of the wrong inflicted upon him, if a wrong was inflicted upon him, and if he was caused to be humiliated, and if his feelings, gentlemen, were greatly, outraged and wounded, and if he was chagrined or brought into contempt of the other people present, then, gentlemen, that would be a part of his actual damages, and the law, if he is entitled to recover anything in this case, would entitle him to recover for those actual damages.” Nor was there error in refusing defendant’s requested charges 1 (so denominated by us), 8, and 9, charges which we denominate A, B, C, and D, and charge 12. The case of L. & N. R. Co. v. Hine, 121 Ala. 234, 25 So. 857, was based on the facts that may be stated as follows: “If a person claims damages because of the ridicule to which he was subjected in being ejected from a railroad train, and it does not appear that the persons ridiculing him. were present when he was ejected, or that he alone did not inform them of it, or that their conduct was in any sense approximate upon the wrong, he cannot recover such damages.” And on this ground it was declared that a charge denying recoverable damage for ridicule should have been given. The affirmative instruction and that seeking to confine damages to a nominal sum were properly refused. The question of credibility of evidence, direct and cross-examination (Jones v. Bell, 201 Ala. 336, 77 So. 998), and the reasonable inferences to be drawn, are fox- the jury. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. There was evidence (aside from inferences to be drawn from plaintiff’s evidence), as that of the newsboy, that the passenger seeking to enter the train was repulsed by the brakeman oix duty or at said entrance. A willful act will support a count for wanton injury. The defendant had the right to show the animus of a witness, if such there was. The question, “Wex-e you, out of employment?” unaided by other evidence, was not sufficient to show bias or prejudice against the defendant. There was no error in sustaining plaintiff’s objection to the question. We cannot say -under the evidence and the rule of Cobb v. Malone, 92 Ala. 633, 9 So. 738, N. C. & St. L. R. Co. v. Crosby, *525 194 Ala. 338, 347, 70 So. 7, that there was error in overruling the motion for a new trial. The damages that may be awarded for pain and mental anguish are in a large measure discretionary, within reasonable bounds; and, unless the amount awarded is so excessive or so inadequate as to indicate prejudice or passion, the rule in this jurisdiction is not to reverse. Whitman’s Fifth Ave. Garage Co. v. Ricks, 211 Ala. 527, 101 So. 53; Central of Georgia v. White, 175 Ala. 60, 56 So. 574. The judgment of the circuit court is affirmed. Affirmed. ANDERSON, O. J., and SOMERVILLE and BOULDIN, JJ., concur.