On Rehearing. The trial court having correctly submitted to the jury the controverted issue whether the motorman in fact applied offensive language to the plaintiff while he was a passenger on the car, the remaining major inquiry was the soundness of the trial court's conclusion that the material averment, in all the counts, of the existence of the relation of passenger and carrier at the time the assault alleged was committed by the motorman on the plaintiff was not supported, in any degree, by the evidence, the fact, as found, being that this relation had terminated at the time of the alleged assault. This latter inquiry and the trial court's conclusion thereon did not involve the application of the doctrine of respondeat superior, but, far differently, did require the determination of the question whether a material averment in the complaint was supported by any tendency of the *Page 354 evidence. A clear conception of the question presented and decided, below and here, is absolutely necessary to avoid confusion and to invite a well-founded judgment.
The brief for the rehearing insists that our conclusion of fact that plaintiff left the car voluntarily at his destination, is not justified by the undisputed evidence; that that matter was a jury question. A careful reconsideration of the whole evidence confirms the original conclusion. The alleged assault was committed at Sixty-Fifth street, in a public thoroughfare, where the cars customarily stopped to discharge passengers. There is no evidence whatever of an assault on the plaintiff by any one while he was on the car. The plaintiff's own testimony demonstrates the correctness of the court's conclusion on this matter. He testified:
"I was going to Sixty-Fifth street. I was working at night at Stockham Pipe Fitting Company, and I was going home in the morning. * * * I gave a signal for the car to stop at Sixty-Fifth street. I rung the bell. * * * When I gave the signal the car stopped. The door between me and the vestibule was closed. I rings the bell, and old man Charlie was sitting at the door, and he pulled the door open when I rung the bell, and I steps by, and the motorman asked me, 'Why don't you shut the door?' I says, 'The other man will shut the door;' and I stepped to the ground, and he followed behind me. I heard something behind me. I looked around to see what was behind me, and he landed me over the eye. As I was going out of the door the motorman said, 'Black __________, I will kill you.' I stepped on the ground, and he followed me out. I got a step or two, or two or three steps from the car, and I heard something behind me, and looked around and got the lick. After he hit me I said, 'What did you hit me for?' He says, 'Don't you stoop; * * * I will kill you.' I was like this (indicating). It must have been a pretty hard blow; it busted my eyeball out. I had gotten off there before that. That was the place where passengers waited to get on and off the car, there where I got struck."
Cross-examination:
"When I went by the motorman he asked me why I didn't shut the door. I says, 'The other man is going to shut the door;' the old man was trying to shut it. The motorman seemed a little horsey the way he spoke. He repeated it the second time, and said, 'Why in the hell don't you shut the door?' He got a little worser. When he said that I told him the man was going to shut the door. Then he said, 'Get off, you black __________.' At that time during this conversation the car was already stopped, and I was going by him. About the time the car stopped I was opposite him. * * * I didn't know where he was until he hit me. * * * He took the controller handle and stepped off the car, and followed me two or three steps I will say, three or four steps, something like that, and struck me without notice at all."
There is no other fact or circumstance disclosed by the evidence that tended to contradict the plaintiff's own statement, bearing on his voluntary departure from the car, or to show, in any degree, that plaintiff did not leave the car voluntarily, at his destination. It is insisted on the brief for rehearing that because, according to some of the evidence, the motorman said to the plaintiff, "Go on, you have said enough now," and "Get off, you black __________," as plaintiff was passing over the vestibule or platform of the car and down the steps leading to the ground, there was evidence before the jury tending to show that the plaintiff did not voluntarily leave the car. Since the plaintiff had already theretofore signaled the car to stop, at his destination (Sixty-Fifth street), and since he had left his seat in the car and passed through the door to the vestibule or platform where the motorman was in his place, in process of leaving the car, at his destination, it is not reasonably possible to attribute to these statements of the motorman an effect to show that the plaintiff did not voluntarily leave the car as he, himself, had indicated was his purpose in signaling the stopping of the car and in proceeding to leave it. The mere fact that the plaintiff might, had he desired, have ridden a greater distance on the car for the fare paid by him could not serve to institute a conflict in the premises, in view of the undisputed fact that as he approached his destination he signaled to stop the car and proceeded to leave it.
As pointed out in the original opinion, the case of Ala. City, etc., Ry. Co. v. Sampley, 169 Ala. 372, 53 So. 142, is plainly distinguishable from the case under review, because in that case there was evidence tending to show that the "defendant's conductor attacked plaintiff before he had alighted from the car"; that an assault, according to some of the evidence, was committed on Sampley while he was on the car; whereas, in this case there was no evidence of an assault upon the plaintiff on the car, and, besides, the plaintiff left the car voluntarily, as the evidence indisputably shows.
The argument in the brief otherwise is, in effect, only directed to the application of the law touching the termination of the relation of passenger and carrier, as we were at pains to state upon established authority in the original opinion. Having left the car voluntarily, at his destination, and, according to his own testimony, walked a few steps in the public street, away from the car, the plaintiff's relation as a passenger had terminated when the alleged assault was committed upon him from the rear and without notice. Aside from the controverted issue with respect to the offensive language the plaintiff claims was applied to him by the motorman while the plaintiff was on the car, the plaintiff was transported safely to his destination, alighted voluntarily from the car in a public street, and was walking away from the car when, according to his *Page 355 own testimony, he was assaulted without notice from behind by the motorman who had left his place on the car. In the brief for rehearing counsel cite 10 C. J. pp. 892, 893, stating that where an "assault commenced in the carrier's vehicle is kept up after the passenger has alighted therefrom," the carrier is liable for both the initial assault and for the attendant consequences flowing therefrom in natural sequence, and as a part of one continuous transaction. The doctrine of that text, as well as the pertinent doctrine of the Sampley Case, would have application here if the motorman had commenced an assault on the plaintiff while he was on the car. The case cited on the brief of O'Brien v. St. Louis Transit Co., 185 Mo. 263,84 S.W. 939, 105 Am. St. Rep. 592, is to be distinguished on the same ground, because the opinion in that case affirmatively discloses an assault by the conductor which was begun while the plaintiff was on the car, being carried by his destination; the court holding that the assault thus begun on the car was one continuous transaction, though taking place after the conductor and the plaintiff had left the car and gone to the sidewalk. The case of Johnson v. Washington Water Power Co., 62 Wn. 619,114 P. 453, also presented a case where the employé had assaulted the plaintiff while he was on the car and undoubtedly still a passenger, the opinion disclosing that in response to a specific question presented to the jury the jury found that the plaintiff "was on the car when first struck."
While the grave injury which this plaintiff suffered from the blow struck by the motorman naturally awakens a just sympathy for his misfortune, yet that fact cannot be accorded influence in determining, under the undisputed evidence, the purely legal question: Had the relation of passenger and carrier ceased at the time the plaintiff was assaulted?
The application for rehearing must be denied.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.
SAYRE, GARDNER, and THOMAS, JJ., dissent.