THOMAS, J. ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.
personal injuries alleged to have been sustained by her while being transported as a passenger of the defendant on its passenger train.
The evidence discloses that Mrs. Ruth Mobley bought her ticket to Atlanta, Ga., and boarded appellant's passenger train at the terminal station in Birmingham, Ala., carrying her one year old baby; that she went into the parlor car of appellant's train and causing her great physical and mental pain and suffering. The evidence further tends to show that the car in which appellee was riding was a part of appellant's train operated by appellant, and that said car and its conductor and porter were under the charge and control of appellant's train conductor.
(1) There are several assignments of error challenging the rulings of the court on the admission of evidence against the objection of the defendant. The appellee as a witness had testified without objection that when she notified the conductor he went back to where the men were and "when he came back he said it was all over, and that he was very sorry it happened; that it was neglect on his part; that he should have been back there."
The bill of exceptions does not show that the question eliciting this statement was duly objected to before answer or after answer, as not responsive to the question eliciting this statement of the conductor, or that motion was made to exclude the statement, and that on ruling of the court thereon an exception was reserved to such ruling. The court's ruling cannot be reviewed by the statement, in the bill of exceptions: "Defendant here objected to the introduction of that part of the answer of the witness which relates to what the conductor said, on the ground that the same is hearsay."
To review the action of the court in permitting the introduction of the testimony, the objection must be directed to the question when asked, and the exception taken to the ruling of the court thereon, and if the answer was not responsive, a motion must be made to exclude, and an exception reserved to the ruling of the court thereon.
(2) The bill of exceptions is construed most strongly against the party excepting, and if it will admit of two constructions, one of which will reverse, and the other support, the judgment, the latter construction will be adopted.-- Dickens v. State, 142 Ala. 49, 39 So. 14, 110 Am. St. Rep. 17; McGehee's Case, 52 Ala. 224.
(3) The practice cannot be sanctioned of objecting, not to questions propounded, but to testimony already before the jury. The answer to a question propounded in speculation upon what a witness will say, proving unfavorable, cannot be eliminated by a motion to exclude.-- Dowling v. State, 151 Ala. 131, 44 So. 403; Coppin v. State, 123 Ala. 58, 26 So. 333; Woodson v. State, 170 Ala. 87, 54 So. 191; Gordon v. McLeod, 20 Ala. 242; Rives et al. v. McLosky, 5 Stew. & P. 330.
(4) There was no error in the court's overruling the defendant's objection, for it is clear that it was not made to the question when propounded and before answer. The motion to exclude does not clearly appear to have been ruled on.-- Stuart v. Mitchum, 135 Ala. 546, 551, 33 So. 670.
(5) Even if the statement in the bill of exceptions that "the court overruled defendant's objection" could be applied to the motion to exclude, there was no exception to the action of the trial court in refusing to grant the motion.-- Vankirk L. & C. Co. v. Green, 132 Ala. 348, 31 So. 484.
court, and to show by the record an exception to the ruling. The illegal and immaterial testimony should be pointed out by the party objecting thereto. The court is not required to look for the grounds of the objection, nor to separate relevant and competent testimony from that not responsive and not relevant, and the court cannot be placed in error for overruling the objection.-- B. R., L. & P. Co. v. Saxon, 179 Ala. 136, 157, 59 So. 584.
The assignments of error disclose no error in the rulings of the trial court on the introduction of evidence.
the presence and hearing of the plaintiff and in close proximity to her. There was in the record evidence tending to support, or furnishing a reasonable inference of the truth of, the material averments of each count of the complaint, and the general charge for the defendant was properly refused.
(8) A common carrier owes the duty to exercise the highest degree of skill and diligence in conserving the safety of its passengers. It is bound to take all reasonable precautions, as judgment and foresight suggest, to make the passenger's journey safe and free from harm and insult, and is responsible to the passenger for the consequences of the slightest negligence, on the part of its agents and servants, proximately resulting in injury and insult to such passenger. In Southern Railway Co. v. Lee, 167 Ala. 268 at 268-272, 52 So. 648, 649, Mr. Justice SIMPSON, writing for the court, said: "While it is sometimes (3d Ed.) §§ 982, 984; 6 Cyc. pp. 602, 603; Houston, etc., R. Co. v. Perkins, 21 Tex. Civ. App. 508, 52 S.W. 124.
The general authorities are collected in 6 Cyc., pages 602, 603, where the duty of protection of passengers against injuries from fellow passengers is stated as follows: "It is the duty of the servants of the carrier to exercise great care and vigilance in preserving order and guarding passengers from violence or insult threatened by fellow passengers, and this duty may involve the co-operation of the servants of the carrier and the invoking of the assistance of other passengers in removing from the train a disorderly passenger."-- N. O., etc., R. Co. v. Burke, 53 Miss. 200, 24 Am. Rep. 689; Putnam v. Broadway, etc., R. Co., 55 N.Y. 108, 14 Am. Rep. 190.
(9) It was held that a passenger may recover for mental suffering, unaccompanied by physical pain, caused by vulgar, profane, and indecent language of other passengers which might have been prevented by the servants of the carrier.-- Houston, etc., R. Co. v. Perkins, supra. In Birmingham Railway, Light & Power Co. v. Glenn, 179 Ala. 263, 267, 60 So. 111, 112, it is said: "Whatever the rule may be in some other states, it is settled by a former decision of this court that it is an actionable breach of the carrier's duty to negligently permit other passengers to use profane or insulting language in the presence of a female passenger."
It is thus clear that, independent of personal injuries, damages may be recovered by a female passenger for mental suffering from fright, or shock, due to profane, abusive, or insulting language used in her presence by an employee of the defendant, and that the carrier is also under the duty to use all reasonable precautions suggested to human judgment and foresight to make its passenger's journey safe and comfortable and free from insult, indignity, and personal violence.-- B. R. & E. Co. v. Baird, 130 Ala. 334, 344, 30 So. 456, 459 (54 L.R.A. 752, 89 Am. St. Rep. 43). Chief Justice MCCLELLAN in this case declared: "It is not material whence the disturbance of the passenger's peace and comfort and personal security or safety comes or is threatened. It may be from another passenger, or from a trespasser or other stranger, or from another servant of the carrier, or, a fortiori, from the particular servant upon whom the duty of protection peculiarly rests."-- Culberson v. Empire Coal Co., 156 Ala. 416, 47 So. 237; Sou. Ry. Co. v. Nelson, 148 Ala. 88, 41 So. 1006.
Appellant's counsel cites in B. R., L. & P. Co. v. Glenn, supra. The justice, writing for the court in Batton's Case, quotes from Britton v. Atlanta & Charlotte Ry. Co., 88 N.C. 536, 43 Am. Rep. 749, this statement of the rule: "The carrier owes to the passenger the duty of protecting him from the violence and assaults of his fellow passengers or intruders, and will be held responsible for his own or his servant's neglect in this particular when, by the exercise of proper care, the acts of violence might have been foreseen and prevented; and, while not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passengers from assaults from every quarter which might reasonably be expected to occur under the circumstances of the case and the condition of the parties."
The court held that, under the facts of the Batton Case, the defendant was not liable, in an action for damages at the suit of a female passenger, on account of obscene and profane language and indecent exposure of the person and other disorderly conduct by two or three intruders, who came into the waiting room at the station while plaintiff was waiting for the arrival of her train, when it was not shown that the company had notice of any facts which justified the expectation of such an outrage. In N., C. & St. L. Ry. Co. v. Crosby, 183 Ala. 237, 62 So. 889, the measure of care is declared to vary according to the time and place "and, while a very high degree of care may be required of the carrier with respect to passengers while actually on its trains or cars, only ordinary care is required as to passengers waiting at its stations, at least under ordinary conditions as they exist in this country."
The facts of the Batton and Segal Cases are somewhat similar, and the duty of the common carrier to the prospective passenger is correctly stated, yet the principles of these cases have no application to the facts of the case before us, the law of which is declared in B. R., L. & P. Co. v. Glenn, supra, and Southern Railway Co. v. Lee, supra.
(10) The evidence shows without conflict that the assault, insult, and nervous shock sustained by Mrs. Mobley as a passenger of the defendant were caused by two drunken passengers going into the ladies' toilet of the car in which she was riding, cursing her, throwing her violently to the floor, and that even after she had complained to the conductor and porter, the insult and shock was prolonged and continued by the act of the defendant's servants in confining the men in the closet, instead of promptly removing them from the car. The duty of defendant was to apprehend the injurious misconduct complained of, if it could have been foreseen in time to prevent its occurrence, or, if not, to prevent its continuation or its repetition, on its discovery.
From the foregoing there was no error of the trial court in submitting the case to the jury, nor in refusing to give charges 1, 2, and 3, requested by the defendant.
(11) There was no error in the trial court's refusing to give charges 6, 8, and 13, requested by the defendant. The charges ignored that phase of the evidence tending to prove that the two men were allowed to remain in the toilet and to use profane and obscene language in the presence and hearing of plaintiff after their presence in the toilet had been made known to the defendant's servants and agents.
(12) The charges were also erroneous in instructing the jury insult and injury. In respect to the passengers actually on its train or car, the law exacts of the common carrier a very high degree of care, and not the exercise of reasonable care, as the defendant sought to have the jury instructed by the charge.-- N., C. & St. L. Ry. v. Crosby, supra ; Batton v. S. & N. Ala. R. R. Co., supra.
(13) Charges 7, 11, 12, and 13 sought to have the jury instructed that, though the conductor of defendant or the conductor of the Pullman Company was negligent, if they did not know of the presence of the men in the ladies' toilet, such fact could not be made a basis of liability against the defendant. If through negligence of the agents or servants of the defendant company the plaintiff was not protected, as a passenger, from assault or insult, the defendant failed in its duty to the plaintiff. Under such charges, said servants or employees of the defendant whose duty it was to care for and protect passengers in the car might have been guilty of a disregard of their duty, and yet the defendant could disclaim any liability therefor, if said agent or employee had no knowledge of the presence of the men in the ladies' toilet. There was no error in the court's refusing to give charges 7, 11, 12, and 13. Charge 11 is further faulty in that it pretermits any consideration by the jury of the evidence tending to support the allegations of the second count of the complaint, and for this reason it was properly refused.
(14) Under the evidence in the case the question of the extent of the injury or insult, and the resulting damage therefrom, was a question for the jury. Mrs. Mobley testified that the assault on her caused certain designated physical injury, and a shock to her nervous system so severe as to cause the milk at her breasts to dry up, so that she could not properly nurture her infant, and that she was forced to have the services of a physician. For the failure of the duty as declared in B. R., L. & P. Co. v. Glenn, supra, a plaintiff may recover substantial damages for such an insult and consequent mental suffering.
Independent of damages for other personal injury, substantial damages may be recovered by the female passenger, plaintiff in the case at bar, for fright and shock due the profane and insulting language used in her presence and hearing by the two men confined in the toilet by the conductor, after knowledge of their drinking, condition, etc. Charge 9, requested by the defendant, was properly refused.
(15) The vice of charges 10 and 12, requested by the defendant, was in the failure to properly state the rule of law under the pleadings and the evidence in the case. The charge ignores the proposition that the carrier's employees must exercise a high degree of care, exacted of them by law, to prevent insult and injury, and that, having reasonable grounds for believing that any passenger will act in a violent or an offensive manner, it is their duty to take immediate steps to prevent such conduct or to exclude such offenders from the car. The evidence shows that the conductor had knowledge of offensive conduct on the part of the two men, and that he confined them in the toilet and detained them there, notwithstanding they continued to be insulting and offensive, in their conduct and language, in the hearing of the plaintiff; that he did not immediately remove them from the car and out of the presence or hearing of the plaintiff. The undisputed 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 if the law were otherwise."
(16) The first given charge of appellee is taken from this statement of the law. The appellant, in its brief, criticizes the Baird Case and seeks to limit that statement of duty by a common carrier to passengers to preventing an assault on a passenger by a conductor of the car. The charge is not open to the objection that it made the common carrier an insurer of the passenger, for the duty placed on the common carrier under the charge was "to use all such reasonable precautions as human judgment and foresight are capable of to make his passenger's journey safe and comfortable."
by other passengers." "The defendant company cannot, in any aspect, be considered an insurer in this case."
The statement of the law in the Baird Case was adopted in Southern Railway Co. v. Nelson, 148 Ala. 88, 41 So. 1006, and by Mr. Justice ANDERSON in Culberson v. Empire Coal Co., 156 Ala. 416, 420, 47 So. 237, and was cited with approval in B. R., L. & P. Co. v. Glenn, supra, and in B. R., L. & P. Co. v. Parker, 161 Ala. 248, 50 So. 55. In the latter case, Justice SAYRE, citing the Baird Case, says: "We think, however, that the language of Hutchinson on Carriers may be appropriately quoted in this connection: The contract of carriage as to female passengers embraces an implied stipulation that the carrier will protect them against general obscenity, immodest conduct, or wanton approach."
There was no error in the trial court's giving, at appellee's request, charges 1, 2, 4, and 5.
From the foregoing authority, there was no error in the trial court's oral charge to the jury as sought to be pointed out by the fifteenth and sixteenth assignments of error. The general charge of the court must be considered in its entirety, and not by excerpts therefrom; and, when so considered, the duty of the common carrier to the passenger was correctly stated to the jury.
(18) The action of the trial court is challenged in overruling the demurrer to the first count of the complaint. The count states the facts and res gestae of the injury, not imputing the defendant's negligence to them, Ga., and the injury complained of is averred to have been received while plaintiff was being transported as such passenger, by the defendant, between said points. The complaint does not attempt to set up the quo modo of the injury, but concludes with a general averment that the plaintiff's alleged injuries were proximately caused by the negligence of the defendant's agents or servants in or about the carriage of the plaintiff while a passenger of the defendant. The count was sufficient as against demurrer, and the overruling of the demurrer by the trial court was free from error.-- B. R., L. & P. Co. v. Jordan, 170 Ala. 530, 54 So. 280; B. R. L. & P. Co. v. Barrett, 179 Ala. 274, 60 So. 262; B. R., L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80.
(19, 20) The demurrer to the first count of the complaint was refiled to the second count. The very general grounds of demurrer were not sufficient to raise the objection insisted on by the appellant in its brief that of plaintiff's one year old infant, and causing plaintiff to endure great physical and mental pain and suffering, and that said injuries were proximately caused by the negligence of defendant's servants or agents in and about the carriage of plaintiff as a passenger of defendant.
No error appearing in the record, the case is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.