Birmingham Electric Co. v. Bailey

SIMPSON, Judge.

Recovery in the case was rested upon count two of the complaint, the only count submitted to the jury.

The gravamen of this count is not the wrongful ejection of the plaintiff, but that it was made so by the use of unnecessary force. Stripped of its verbosity, the count charged the ejection of the plaintiff from the appellant’s car by the use of excessive force applied by the motorman while acting within the scope of duty and proximately resulting in the catalogued injuries to the plaintiff. The count charged an actionable wrong. Birmingham Ry. Light & Power Co. v. Yielding, 155…