HOLMES v. CENTRAL OF GEORGIA RY. CO., 22 Ala. App. 355 (1928)

HOLMES v. CENTRAL OF GEORGIA RY. CO., 22 Ala. App. 355 (1928)
116 So. 323


6 Div. 342.Court of Appeals of Alabama.
January 17, 1928.Rehearing Stricken March 6, 1928.Page 356

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages by Elizabeth J. Holmes against the Central of Georgia Railway Company and others. Plaintiff being dissatisfied with the judgment in her favor appeals. Reversed and remanded.

Certiorari denied by Supreme Court in Holmes v. Central of Georgia Ry. Co., 217 Ala. 333, 116 So. 325.

Statement by the Court.
The complaint is in two counts; count 1 being as follows:

“Plaintiff claims of the defendants, doing business as common carriers of passengers for hire by means of a steam railroad and a line of steamships, $100,000 damages, for that, on, to wit, June 23, 1924, plaintiff, while a passenger of the defendants upon the steamship City of Chattanooga, was severely and seriously injured as follows: Plaintiff was caused to stumble and fall in the hold of said ship, severely and seriously injuring plaintiff’s head, neck, back, body, limbs, viscera of the cranial, thoracic, pelvic, and abdominal cavities, spine, and general nervous system, thereby causing plaintiff to endure very great physical and mental pain and suffering, to lose a great deal of time from her employment, and to incur great expense in and about the treatment of said injuries, permanently injuring plaintiff and permanently rendering plaintiff less able to earn a livelihood. Plaintiff avers said injuries were proximately caused by the negligence of the defendants’ servants or agents, while acting within the line and scope of their employment in and about the carriage of plaintiff as a passenger of the defendants.”

The second count is the same as count 1, except that the negligence is charged as follows:

“Plaintiff avers said injuries were proximately caused by the wanton, willful, or intentional conduct of the servants or agents of the defendants, while acting within the line and scope of their employment, which wanton, willful, or intentional conduct consisted in this, said servants or agents wantonly, willfully, or intentionally caused plaintiff to stumble and fall over a steel sill in the doorway of the baggageroom of said ship, with the knowledge plaintiff would probably be injured thereby and with reckless disregard of the consequences.”

Plaintiff took passage on the lines of the defendants from Milledgeville, Ga., to New York City. A part of her journey was by water. Some of her baggage, being too bulky for space in her stateroom, was put in the baggageroom, situated in the hold of the ship. Leading to this baggageroom was a passageway which, according to one of defendants’ witnesses, was dangerous to travel without lights. In the words of this witness, “anybody was liable to stumble over something and fall down without the lights on.” Plaintiff, desiring to obtain some articles from her trunks, went to the purser for this purpose. According to her evidence, this officer gave the key to a porter and sent plaintiff with this porter to the baggageroom; that the passage was dark; that the porter unlocked the baggageroom door; and that, as she undertook to go into the baggageroom she stumbled over a raised sill, which she could not see, and about which she had not been warned, and fell, sustaining the injuries for which she sues. Plaintiff testified that there was a dim light within the baggageroom.

Defendants’ evidence was to the effect that not only the porter but an officer went along with plaintiff on this occasion, and that lights were burning both in the passageway and in the baggageroom.

On defendants’ request these charges were given to the jury:

“A. If you believe the evidence, you cannot find for the plaintiff against the Ocean Steamship Company under count 2 of the complaint as amended.”

“B. If you believe the evidence, you cannot award the plaintiff any damages for doctor’s bills.”

“C. If you believe the evidence, you cannot find for the plaintiff against the Central of Georgia Railway under count 2 of the complaint as amended.”

There was a verdict for plaintiff for $100 against defendants Central of Georgia Railway Company and Ocean Steamship Company, and judgment accordingly. Thereupon plaintiff filed motion for new trial. The trial court overruled the motion. Plaintiff appeals.

W. A. Denson, of Birmingham, for appellant.

The giving of charges A and C constituted reversible error. Birmingham R. E. Co. v. Bowers, 110 Ala. 331, 20 So. 345; B. R. E. Co. v. Smith, 121 Ala. 355, 25 So. 768. Defendants were not entitled to charge B, given at their request. Scullane v. Kellogg, 169 Mass. 544, 48 N.E. 622; St. L., etc., R. Co. v. Stell, 87 Ark. 308, 112 S.W. 876; Moran v. Dover R. Co.,74 N.H. 500, 69 A. 884, 124 Am. St. Rep. 994, 19 L.R.A. (N.S.) 920; Frankfort Tr. Co. v. Hulette, 106 S.W. 1193, 32 Ky. Law Rep. 732; 17 C. J. 804.

Nesbit Sadler, of Birmingham, for appellees.

There was no prejudicial error in giving the affirmative charge as to count 2. Punitive damages might have been awarded under the negligence count; and the jury by its verdict found there was no wanton or intentional injury. Wilkinson v. Searcy,76 Ala. 176; A. G. S. R. Co. v. Arnold, 80 Ala. 600, 2 So. 337; Ex parte McNeil, 184 Ala. 420, 63 So. 993; Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219. The liability to pay for medical attentionPage 357
being that of the husband, the wife could not recover therefor. Cothran v. Lee, 24 Ala. 380; Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Johnson v. Coleman, 13 Ala. App. 520, 69 So. 318; Gafford v. Dunham, 111 Ala. 551, 20 So. 346; B. R. L. P. Co. v. Humphries, 172 Ala. 495, 55 So. 307.


“In wanton negligence, the party doing the act or failing to act, is conscious of his conduct, and, without having the intent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury.” Birmingham Railway Electric Co. v. Bowers, 110 Ala. 328, 20 So. 345.

The court has read the evidence in this case en banc, and, without discussing it, we state our conclusion to be that there were tendencies of same which rendered it erroneous to give, at appellees’ request, written charge A. The jury, for aught that we can say, might, entirely within their province, have taken as true appellant’s testimony that she was sent, by the ship’s purser, in the sole care of a porter down a long, unlighted corridor, to a dimly lighted room, to enter which it was necessary to step over, in the semigloom, a raised sill, or obstruction, some 15 inches in height; that she was unacquainted with the locus, and unwarned of the obstruction, and directed by said porter to proceed over same. It might then have accepted appellees’ testimony that its servant, alleged by appellant to be the only one accompanying her, knew of the dangerous condition, and knew that one going along as appellant says she was would likely be injured, and that with such knowledge he failed to warn her, or take other steps to avoid her being injured. In other words, dealing with, and considering, the testimony in the case, as it is permitted to do under the law, it cannot be said, we think, by the court, that it could not have found a state of facts to have existed that would have supported the allegations of the second, wanton, count of the complaint. Whether the allegations of this count were proved, was we think a question that should have been left, under proper instructions, to the jury.

What we have said above explains our holding, as we do, that it was error to give at appellees’ request written charge C.

Appellees’ able counsel, in a very skillfully constructed argument, have undertaken to convince us that, the jury having returned a verdict in favor of appellant under the count charging simple negligence, the charging out, by the giving of charges A and C, supra, of the wanton negligence count, if error, was error without injury. But we will not undertake to set out our reasons for failing to agree with their conclusion. It is simply not ours.

There was no proof that appellant had paid out any amount for doctor’s bills. Hence it was not error to give appellees’ written charge B. We will not say that, if it be shown that appellant had actually paid out her own money for doctor’s bills, or that some one else, any one else, had paid out for her, and at her request, money for her doctor’s bills, for which she was liable to the one making the payment, she would not be allowed to recover same. But where, as here, it appears that any sums paid for her treatment were paid by her husband, and nothing more, we find no fault with the rulings of the trial court to the effect that she could not recover any amount for doctor’s bills.

For the errors pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.