^ Awarded fifteen hundred dollars damages by a jury upon the trial of an action against the Norfolk & Western Railway Company for ejecting him or permitting him to be ejected unlawfully from its train, while a passenger thereon from Columbus, Ohio, to Iaeger, McDowell County, Frank Anania assigns as erroneous the action of the trial court in granting defendant’s motion for a new trial.
Charles Near, his wife and plaintiff were traveling companions from Albany, New York, to their destination in this state. They were Italians except Mrs. Near; but, as witnesses testified, they were unacquainted prior to their meeting in Albany for the purpose of the trip. Anania occupied the second or third seat in the rear of the Nears. After the train had left Williamson, that place being the terminal point for exchange of train crews, the conductor awakened the Nears and of them demanded tickets. They had tickets, as had also Anania, entitling-them to transportation to their destination. As they were unable to find them promptly upon’ demand, a colloquy arose between them and the conductor, terminating in a threat of ejection unless the tickets were produced or fare paid. Mrs. Near then became violently abusive and used vulgar and •coarse language. A justice of the peace, also a passenger, voluntarily projected himself into the altercation, and, he says, proclaimed his official authority. When vigorously assaulted, if indeed he did not commit the first breach of the
With Anania the conductor had no conversation, did not speak to him, did not demand his ticket. Nor did Anania participate in the quarrel with the Nears and the assault by and upon them. He said nothing and did nothing, except to arise from his seat and indicate a purpose to. move forward toward his companions and the officer in charge of the train. But, being advised or directed to sit down, he resumed his seat without protest, and made no further demonstration of any character, hostile or otherwise, and offered no resistance to the arrest and expulsion. To him no witness attributed a vulgar word or any boisterous or turbulent conduct. He was faultless as any other passenger except the actual participants in the struggle. He made no hostile movement against any one, and, when reseated, remained only an interested observer of the nsuing occurrences. What-'he may have done, if permitted to go forward,-was merely conjectural. His attitude was not malevolent or demonstrative. No testimony shoived it to be of that character. No real attempt was made to show, and if made it failed of its purpose, that his temper indicated an intent to engage in the affray. It was insufficient to generate an inference of hostility. For.aught that appears to the contrary, his object may have been to quiet his companions or assist them in finding their tickets. That they had tickets he knew. Theirs and his were purchased at the same time and place and for the same destination. He had his - own, and reasonably he could, and perhaps did, assume they had theirs, as indeed the uncontradicted proof clearly demonstrates.
The three persons were passengers entitled to passage over defendant’s road to Iaeger, unless by gross misconduct one or more of them forfeited such right. While such passengers, they were entitled also to- that high degree of care by law imposed upon a carrier to protect and safely deliver them pur
Defendant, however, attempts to exonerate itself from liability on the ground that, as the arrest and expulsion were caused by a justice of the peace, without the participation of its agents or any of them, it is not'chargeable in damages; and to sustain this proposition it cites Bowden v. Railroad Co.,
This case presents a state of facts wholly different from the facts of the case cited by defendant and others not so cited,
The duty not to interfere has its limitations. - In Railway Co. v. Crosby,
Rare indeed are cases involving the delinquency of corporate agents in circumstances similar to those shown by this record. They are unusual and exceptional. Diligent research therefor has proved unavailing, except as to those cited. Defendant relies only on the one case, and it has no controlling effect.
Here the officer unlawfully and unnecessarily interfered. There was nothing to justify his course, unless it was the vulgarity of Mrs. Near. No violence was attempted or committed until he interfered, 'and, but for his intrusion,, none may have occurred. Without the" slightest protest by the conductor and in his presence, the justice, as soon as he reached the seat occupied by the Nears, began to inflict violent blows on Charles Near, injured his hand while administering the “strong arm’’, beat and wounded the passenger assailed, and with the assistance of a member of the train crew expelled him from the car, threw him on the ground, disabled and stunned by such vigorous and inexcusable treatment. Then returning he ejected plaintiff also, though with less manifestation of physical violence. The conductor knew, or if reasonably diligent ought to have known, that -whatever may have been the conduct of the Nears, Anania had done no act and said no word indicative of an intent to disobey any lawful demand made upon him or any rule or regulation of the company, or to project himself into the quarrel or combat between the trainmen and justice on the one hand and his companions on the other. The testimony presents his as free from default as any other passengers save those actively participating in the assault. Though thus innocent and free from the appearance of unlawfulness and from conduct justifying the treatment received, he was deprived of a carriage for which he had made due compensation in advance, and of that protection which the law requires of a carrier, without any attempt to prevent the indignity unlawfully imposed upon him.
On the second proposition, counsel cited Vinal v. Core,
Had the conductor performed the duties by law exacted of him as an agent of the carrier, or as such agent protested against the unlawful arrest, or made an honest effort to prevent it, or offered plaintiff the protection to which he clearly was entitled, an arraignment and trial indeed would have been unnecessary. He was in a situation to observe, and if he had exercised a reasonable degree of diligence in the performance of the service confided to him he would have observed and known, Anania was innocent of any legally punishable
Nor were the responses and the general verdict inconsistent, as counsel contend. To the first inquiry, the jury replied, in substance, that the conductor failed to protect plaintiff against an unlawful arrest; and, to the second, that the trainmen caused the arrest, made complaint, and engaged in the prosecution before the justice. While the evidence may not warrant the last conclusion, still want of proof does not establish lack of consistency. To be inconsistent, the answers must exclude every conclusion not in accord with the general verdict. Manufacturing Co. v. Insurance Co.,
There was evidence on which, if given credence, the jury could, and from the verdict and answers evidently did, find that the conductor actually did assist in expelling plaintiff. Plaintiff so testified, as also did Charles Near; and neither of them was contradicted by any other witnesses, though some of them did testify that they did not see the conductor render such assistance. He swore he was not present when plaintiff was ejected; the justice swore he was present, but further said he did not observe whether the conductor or any other member of the train crew assisted in the ejection. He seemed not to know whether any aid was rendered by any person officially charged with the operation of the train.
For reasons stated, the order entered here will reverse the judgment, reinstate the verdict, and thereon render judgment for plaintiff, with interest as required by law'.
Reversed and rendered.