Southern Railway Co. v. Haynes

MAYFIELD, J. — This is an action by a passenger against a carrier to recover damages for an assault and battery committed by a third party while plaintiff was in defendant’s depot or waiting room. The actionable negligence or breach of duty relied upon to charge the carrier with liability is as follows: “That one Hall, servant and agent of the defendant in charge of said depot, had knowledge of the danger that was impending to plaintiff, and was informed that said assault was impending, or had knowledge that it was necessary to intervene in order to protect this plaintiff, and said servant or agent knowingly failed or refused to discharge the duty devolving upon him of interfering or intervening in order to protect the plaintiff, and such negligence on the part of such servant or agent of the defendant resulted in the injury to the plaintiff herein above set forth.” It is first insisted by appellant (defendant below) that the complaint was defective in not stating sufficient facts to show a duty to protect plaintiff from the assault and a breach of that duty. One notable insistence is that there is a total lack of allegation that the agent of the defendant had knowledge or notice of the intended [63] assault in time to have prevented it. This element of liability is not alleged in words, but is alleged in effect or substance. The complaint, or counts A and 3 on which the case was tried, were practically copied from counts held good by this court in the case of Culberson v. Empire Coal Company, 156 Ala. 417, 47 South. 237. It is insisted by appellant that the above case was, in effect, though not expressly, overruled by the later case of Southern Railway Co. v. Hanby 183 Ala. 225, 62 South. 871. We do not think the two cases are in conflict. The allegations in the two complaints were not at all similar. In Hanby’s Case there was no allegation similar to the one in this case, that the — ' “agent in charge of the depot had knowledge of the danger that was impending to plaintiff, and was informed that said assault was impending.” This is a material allegation, and helped to supply the defect pointed oiit in the Hanby Case, supra. The insistence of counsel for appellant as to the defect in the counts in this case is well answered in the Culberson Case, supra. There was no error in allowing the plaintiff to show that he did not continue his trip for which he had purchased his ticket on the night of the assault. This evidence was clearly relevant. There was no error in declining to allow the witness Stewart to give his opinion that there was not sufficient time for the agent to interfere after Brown addressed plaintiff, and before he struck him. The witness should have stated the facts, and let the jury draw the conclusion. There was no error in refusing to allow the defendant to prove by the Avitness Brown that the defendant’s agent, Hall, knew nothing of any ill feeling between [64] plaintiff and Brown. It has been repeatedly ruled by this court that one person cannot testify as to the cognovit of another person.—L. & N. R. R. Co. v. Perkins, 165 Ala. 471, 51 South. 870, 21 Ann. Cas. 1073. It was error, however, to require the witness Brown, over the objection of the defendant, to state to the jury, his conclusion as to the motive, cause, or reason for his assaulting plaintiff. The witness, although the sole party who committed the assault and, so far as this record shows, committed it without justifiable cause or excuse, was not sued in this action, was not a party to the suit, and was not the agent or servant of the defendant railroad company, the sole party defendant.' The defendant was not at all responsible or liable for his secret motives in assaulting'the plaintiff. The sole fault alleged against the defendant was that its agent, Hall, had knowledge or notice of the impending assault, and with such knowledge or notice failed or refused to discharge the duty devolving upon him of interfering or intervening in order to protect the plaintiff. This evidence had no tendency to prove this material issue or any other fact for which the defendant could be made liable. The evident object of the plaintiff’s cross-examination of this witness was to show that the witness assaulted plaintiff because plaintiff had reported him for a violation of the prohibition laws. It was not shown or attempted to be shown that the defendant or its agent, at the time of the assault, knew of the witness’ motive or intention to assault the plaintiff, or knew that plaintiff had reported the witness for violation of the prohibition law. The natural tendency of this evidence was to bias and prejudice the jury against the defendant and in favor of the plaintiff. Its tendency was to show that the plaintiff was a law-abiding man, and that Brown was a lawless man, and assaulted the plaintiff because the plaintiff [65] was trying to enforce the law. If Brown had been the party sned, this fact would have been competent and admissible; but it was not so as against a third party, a stranger to both parties, and one who had no knowledge or notice of such fact. The question was also objectionable because it called for the secret and uncommunicated motive or intention of the witness, and for a mere conclusion of the witness, which, under our decisions, is not admissible. There are some exceptions to this rule; but this case does not come within any one of them. As the cause must be reversed on account of the errors pointed out, it is unnecessary to pass upon other questions. Reversed and remanded. Anderson, C. J., and Somerville and Gardner, JJ., concur.