Robertson v. Louisville & Nashville Rail Road

McCLELLAN, C. J. It was me defendant’s duty, under the aveiunents of the first and second counts of the complaint, to carry the plaintiff from Birmingham to Belle Ellen. The averments of those counts going to show that she Avas a passenger on defendant’s train on its schedule run from the former to the latter place, and fully entitled, as such, to be carried to Belle Ellen, were proved without conflict — in fact, admitted — on the trial. The evidence is clear in support of the conclusion that this duty would have been performed, and that the plaintiff would have been carried tó Belle Ellen, but for the fact that at Yolandy, an intermediate station, whence there was a branch railway to Brookwood, she Avas sent out of the car, in which up to that time she had been riding, bound for Belle Ellen, into a car which, though up to that time a part of the same train, was at that point to be detached and left on a siding, to be carried in another train to BrookAvood.' This car was then put on the side track, and left with her in it, while the train hauling the car from which she had moved went on to Belle Ellen. If she went into this Brookwood car of her own motion, and without fault on the part of the [225] trainmen, in the mistaken belief that it, and not the car in which she had previously ridden, ivas to go on to Belle Ellen, and in consequence was left at Yolandy, the defendant is not liable for damages sustained by her in consequence of her not being carried . to Belle Ellen. But if she made this change of cars, and, as a consequence, was left at Yolandy, and suffered injuries, at the instance of the conductor or flagman of the Belle Ellen train, the defendant urns liable. The complaint alleges that either the conductor or the flagman told her that the car she came from Birmingham to Yolandy in was the Brookwood car, and that the next car ahead Avas the Belle Ellen car, and that either the conductor or the flagman thereupon directed her to take the car ahead to be carried to Belle Ellen, and that acting upon this information, and in accordance with this direction, she Avent into the car ahead, and with it — it proving to be the Brookwood car — was left at Yolandy. If she proved' that either the conductor or the flagman thus caused her to take the wrong car, and to be left, she was entitled to recover. The evidence for the plaintiff tended to show that both the conductor and the flagman separately and at different times gave her this information and direction. On behalf of the defendant, the flagman Avas' examined as a witness, to the effect that he gave plaintiff no such information or direction nor had anything to do with the plaintiff’s changing cars. The conductor was not examined, being dead. On this state of pleading, and proof, it was manifest error for the court to charge the jury that “unless they are reasonably satisfied that the conductor and flagman told plaintiff to get in the wrong car, and thus was left, then you must return a verdict for the defendant.” Nor can it by any means be said that the charge was without injury to the plaintiff, especially in view of the fact that plaintiff’s evidence as to what the conductor did was not controverted, while as to the flagman, it Avas directly contradicted. The jury, but for the instruction, might well have found for plaintiff on the conduct of the conductor, while not believing her evidence as to the conduct of the flagman. [226] The case was unnecessarily cumbered up with additional counts and special pleas. The gravamen of the action' is defendant’s wrong in leaving plaintiff at Yolandy instead of carrying her to Belle Ellen. So far as the right to recover is concerned, it is immaterial whether the alleged wrongful act of the conductor or the flagman was negligently, inadvertantly, or mistakenly, wilfully, knowingly, or even maliciously, done; and it was not necessary for the complaint to employ any of those adverbs in characterizing the wrong. As bearing on the amount of recovery in such cases, it is competent — certainly where such is the averment — to prove that the wrong-doer acted wilfully or maliciously, or with circumstances of aggravation. And the defense in such case is simply a denial of the alleged wrong — the general issue. There is no place in such case for pleas of contributory negligence. If defendant’s wrong had any causal connection with the result complained of, it is no consequence that plaintiff might have yet avoided the’ result by making other inquiry as to the proper car for her to take, or anything of that sort. She had a right to rely implicitly on what the trainmen told her in this connection, and to act accordingly. As the case was developed on the evidence, the sole inquiry was whether she took the wrong car at the direction of the conductor or flagman, or of her own motion, in the mistaken belief — not induced by any fault of the trainmen — that it was the light car. We discover no error in the rulings of the court on the admisibility of evidence. If, after the flagman had been examined as a witness, it had been proposed to show that the plaintiff was a witness in another case to prove misconduct on his part as a flagman, that fact in that connection would have been competent as tending to show his bias as a witness in this case; but we are not of opinion that the fact of plaintiff being such witness in another case, involving a charge of wrong against the conductor and the flagman, was competent here to prove that they wilfully or maliciously caused her to be marooned at Yolandy. [227] What we have said will suffice for the court’s guidance on another trial, and we deem it unnecessary to discuss the rulings below on this trial in detail. Reversed and remanded. Tyson, Simpson and Anderson, J. J., concurring.