Bates v. Birmingham Ry., Light & Power Co.

SAYRE, J. [1] Plea 2 was bad because it neither confessed nor traversed the complaint. Plaintiff may have been disorderly “on the occasion complained of,” and defendant’s conductor for that reason may have properly ejected her from the car; but thesb facts do not necessarily operate to deny the assault and battery charged in the complaint. [2] Plea 3 was properly framed in its formal parts; but we can hardly conceive a ease in which it would be necessary for the conductor of a street car to eject a woman by “applying his foot to her posterior part.” In short, the plea shows that defendant’s conductor kicked plaintiff off the car. Such an application of force to a passenger, male or female, can hardly be justified, especially so in view of the allegation of the second count of the complaint, which alleges that “as plaintiff undertook to alight from said car * * * the said conductor wrongfully kicked plaintiff.” Birmingham Railway v. Baird, 130 Ala. 334, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43. The record does not disclose the fact that any proper showing was made for the admission of the witnesses Ammonds and Roberts. Yarbrough Turpentine Co. v. Taylor, 201 Ala. 434, 78 South. 812. [3] Charge 3, given at the, request of defendant, was misleading; for that it tended to induce the jury to the conclusion that it may have been reasonably necessary to kick the plaintiff off the car in order to eject her. The evidence afforded no ground for ‘such a conclusion. The charge could well have been refused. [4] When the trial judge undertakes to state the tendencies of the evidence to the jury — and such statement frequently affords a most useful means of instructing the jury as to the proper application of the law to the facts — care should be exercised that the statements set forth the tendencies making for the support of the contentions of both parties. Having in view the statement of the trial judge made in response to exceptions to the oral charge, we think appellant has no substantial ground of complaint in this respect. [5] While the evidence sufficed, undeniably, to make out at least a technical cause of action and a right in plaintiff to recover, yet on that view of the case presented by the evidence for the defendant plaintiff’s right may have been characterized by mitigating circumstances of such nature as would justify the assessment of nominal damages only. The assessment of damages was for the jury. Reversed and remanded. ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.