Culberson v. Empire Coal Co.

ANDERSON, J. The third count of the complaint sufficiently averred that the plaintiff was a passenger and that the defendant was a carrier of passengers for hire. It also avers that the conductor or other servants of the defendant knew of the. impending danger to the plaintiff from Ross-and Rainer, and knowingly failed or refused to discharge the duty devolved upon them by .interfering in order to protect the plaintiff, “and such negligence on the part of said servants of the defendant resulted in the injuries' to plaintiff as aforesaid.” If [420] the officers could have prevented the injuries to the plaintiff by intervening or interfering, and knowingly or willfully failed to do so, after knowing of the threatened danger, their failure to do so- was a breach of duty to the plaintiff for which the defendant would be answer-' able. It is true the complaint should aver that the agents or servants could have prevented the injury complained of; but we think the averment that “such negligence on the part of the servants of the defendant resulted in the injuries of plaintiff as aforesaid” was suffi-. cient. The negligence complained of was the failure to interfere after knowledge of plaintiff’s threatened danger, and, if said negligence resulted in plaintiff’s injury, then the injury could have, of course, been prevented by an interference. “The carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully; and, if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult, from whatever source arising. He is not regarded as an insurer of his passenger’s safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of to make him passenger’s journey safe and comfortable. He must not only protect his passanger against the violence and insults of strangers and co-passengers, but a fortiori against the violence and insults of his own servants. If this duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted, through the negligence or the willful misconduct of the carrier’s servant, the carrier is necessarily responsible. And it seems to us it would be cause of profound regret [421] if the law were otherwise.’ The same principles are declared in Dwinelle v. N. Y. C. & H. R. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611, following Stewart v. Brooklyn Railroad Co., 90 N. Y. 588, 43 Am. Rep. 185.” Birmingham Ry. & Elec. Co. v. Baird, 130 Ala. 345, 30 South. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43. It is true that a passenger cannot hold a carrier responsible for injuries by a servant or fellow passenger, if said injury was the result of his own wrong or misconduct. The law is intended to protect the innocent. If the act of the assailant be lawful, whether by a servant of the carrier or another, the carrier would not be liable. A carrier is not liable for an assault made upon a passenger in self-defense. Ry. Neg. of Imposed Duties, p. 371, § 114; Hutchinson on Carriers, vol. 2, § 98U; Lake Erie R. R. v. Arnold, 26 Ind. App. 190, 59 N. E. 394; Scott v. Central Park R. R., 53 Hun. 414, 6 N. Y. Supp. 382; N. O. & N. E. R. R. v. Jones, 142 U. S. 18, 12 Sup. Co. 109, 35 L. Ed. 919. But the fact that the assault was committed in self-defense and was brought on by the misconduct of the plaintiff is defensive matter, and the complaint does not have to allege the fact that the assault was not in self-defense or that it was unlawfully made. The complaint is sufficient if it avers an assault. — Code 1896, § 3352, form 18. Lake Erie v. Arnold, supra, decided by the Indiana Court of Appeals, holds a contrary doctrine and is not in conformity with the weight of authority and our own system of pleading. The opinion treats the plaintiff’s conduct as contributory negligence, and holds that the plaintiff should'aver his freedom from contributory negligence. Clearly contributory negligence is, under our system of pleading, defensive matter, the nonexistenec of which need not be [422] averred in the complaint. The trial court erred in sustaining the demurrers to the third count of the complaint. The record shows that the defendant, among other pleas, filed the general issue, to which there was no demurrer, and upon which the plaintiff took issue. The plaintiff declined to plead over after the ruling of the trial court upon the demurrer to the special pleas and the replications thereto, and offered no evidence in support of his complaint. The general issue having put upon him the burden of proving his complaint, which he failed to do, the trial court was authorized to render a judgment for the defendant. This being true, the rulings of the trial court upon the special pleas and replications could be of no benefit or detriment to him. — Peck & Bro. v. Karter, 141 Ala. 668, 37 South. 920; Andrews v. Hall, 132 Ala. 320; Tobias v. Morris, 132 Ala. 267, 31 South. 498; Cross v. Esslinger, 133 Ala. 409, 32 South. 10; Zirkle v. Jones, 129 Ala. 444, 29 South. 681; Brown v. Insurance Co., 86 Ala. 189, 5 South. 500. The case of Breitling v. Marx, 123 Ala. 222, 26 South. 203, was overruled in the case of Andrews v. Hall, supra; and the case of State ex rel. v. Webb, 110 Ala. 215, 20 South. 462, was explained and qualified in the case of Peck & Bro. v. Karter, supra. These conditions, however, did not preclude the plaintiff from complaining of the action of the court in sustaining the demurrers to the third count of his complaint, as it had, by the action of the court, been eliminated, and the plaintiff had no chance to prove same. For the error above designated, the judgment of the county court must be reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Haralson and Simpson, JJ., concur.