Birmingham Railway & Electric Co. v. Mason

HARALSON, J. The first count in the complaint avers, that “'while plaintiff was engaged in or about becoming a passenger on said car, or being carried as [344] a passenger on said car, defendant’s servant or agent assaulted and abused plaintiff,” etc. The second count avers, that while plaintiff was in said car, or engaged in or about boarding the same, defendant through its servant or agent wrongfully assaulted and abused plaintiff,” etc. Each count was demurred to separately on the same grounds, for that it did not appear in and by said counts that the alleged agent was at the time of the assault, acting within the scope of his duty that it did not appear that the defendant owed any duty to the plaintiff; that it did not appear therefrom that the plaintiff was a passenger on defendant’s car, and that it did not appear that the assault was wrongful. ■'Flie first count purports to state two grounds for recovery, 'the first, that plaintiff “was Engaged in or about becoming a passenger,” and the second, “or (that plaintiff was) being carried as a passenger” The allegation that plaintiff “was engaged in or about becoming a passenger on said car,” shows no relation between him and the company as a passenger. He may have been engaged in and about such business, and yet failed to carry out his'intention. From aught appearing, he may have been at a distance from the ■train, and the conductor, if that were important, may not have, known of Ms intentions to become a passenger. Until some offer to become a passenger, the conductor was not bound to know that he would become such. — Hutch, on Carriers, § 538; North B. R. Co. v. Liddencoat, 99 Ala. 546. It is not averred that the assault by the servant or employe of the company was done by the authority of the company, or by its servant or agent while acting within the scope of his duty. If an assault is committed by a servant of a common carrier or passengers, upon a person not a passenger, and having no relation with the carrier, nor in any way encroaching upon the rights of the carrier, the carrier is. not, liable for the assault unless committed by its authority or under .its direction. . Common. carriers owe the duty to passengers to carry them safely, to conserve by every reasonable [345] means their convenience, comfort and peace throughout the journey, and protect them from insult and personal violence, whether from another passenger, or stranger, or an employe or servant of the carrier.— Birmingham R. & E. Co. v. Baird, 130 Ala. 334. The first count in so far as it sought a recovery on the first ground mentioned therein was defective and liable to demurrer, in not averring that the assault was committed by the defendant’s servant or agent Avhile acting Avithin the scope of his duty or by the authority of the defendant. The second ground stated in the count, on which recovery was sought, Avas sufficient to sIioav that plaintiff Avas being carried as a passenger, and it was unnecessary as to it, that there should have been an averment that the assault Avas committed Avithin the scope of the. duty of the servant or employe. The second count does not aver that at the time of the alleged assault, the plaintiff Avas being carried by defendant on its cars as á passenger, and fails to aver that he Avas assaulted by the defendant or under its authority, and for this reason, Avas liable to the demurrer interposed. Levy, Avho it appears Avas a Jew, examined in chief by defendant, Avas asked by the plaintiff on the cross: “I)o you consider an oath binding Avlien you take it without, your hat. on ?” There was a general objection to the question, which the court overruled. The witness ansAvered: “In our country, when we go to our Jcovish Iuavs, we are bound to be sworn with our hats on. * * Under the JeAvish laAv in the old country, an oath is not considered binding unless you are sworn Avith the hat on. If I was in the old country, I would not consider myself bound to tell the truth unless the oath (Avas) Avith my hat on.” We find no error in this ruling of the court. This disposes of the only errors assigned, except the motion for a new trial, which there is no necessity to consider. Reversed and remanded.