Birmingham Railway, Light & Power Co. v. Tate

WALKER, P. J. As each of the counts of the complaint commenced with a general claim of damages for the alleged wrong to the plaintiff which was complained of, any failure of its averments sufficiently to show the existence of a causal connection between such wrong and the special damages subsequently claimed could not properly be availed of by a demurrer to the count. If there was a failure on the part of the plaintiff to show by sufficient averments that he was entitled to special damages claimed, the objection based upon such failure, being one involving a denial of the plaintiff’s right to recover a part only of the damages claimed by him, and not going to the whole count or complaint, does not constitute a good ground of demurrer to the pleading, but should be availed of by motion to strike out [520] the objectionable averments, or by objections to the evidence, and instructions to the jury. — Alabama Great So. R. Co. v. Tapia, 94 Ala. 226, 10 South. 236; Hester v. Ballard, 96 Ala. 410, 11 South. 427; Kennon & Bro. v. Western Union Telegraph Co., 92 Ala. 399, 9 South. 200; Birmingham Realty Co. v. Thomason, 8 Ala. App., 63 South. 65. We are not of opinion that either count of the complaint was subject to demurrer on any of the grounds assigned. In the argument of the counsel for the appellant it is claimed tliat the statements made by the court in its oral charge to the jury which are referred to in the third and’fourth assignments of error amounted to instructions to the jury that there is no defense in such á case as the one at bar except self-defense. If that charge is considered as a whole; we do not think that such a meaning can be imputed to the expressions complained of. They were made use of by the court in the course of its dealing with the evidence in the case as to the defendant’s motorman presenting a pistol at the plaintiff while the latter Avas a passenger on the car. The court had already plainly instructed the jury as to the effect of the plea of the general issue in putting upon the plaintiff the burden of proving the averments of one or both of the counts of his complaint. It does not seem to us that the expressions complained of, in the connection in which they were used, amounted to anything more, or could well have impressed the jury as amounting to anything more, than a statement that under the evidence in the case as to the motorman’s conduct towards the plaintiff that conduct was not excusable Or defensible unless upon the ground that he was acting' in self-defense, As no question Ayas made as to' the fact that the motorman drew a pistol on the plaintiff while he was a passenger, and as there was [521] ntf' évidence' in the -case ■ having ' a' tendency to shotv that the motorman’s act was justifiable,. upon any ground -other than- that of self-defense, which the- evi-denbé for the defendant tended to support, we are not of opinion that the appellant is entitled to complaint of either of the expressions in question. ' . ' ■' ■ There was no-room under the. evidence for-.a claim that the, mótormán in what he did was. undertaking to defend another ■ passenger or to • eject the plaintiff because of his conduct towards other passengers.' This being true, if he assaulted the plaintiff’ while the latter was á passenger on the car otherwise; than uncler a .necessity to defend himself, his .employer, ..the defendant carrier^ ;Avas liable. — Birmingham Railway & Electric Co. v. Baird, 130 Ala. 334, 350, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43. What has been said disposes of the rulings which are assigned as errors. Affirmed..