108 Minn. 28 | Minn. | 1909
At the time complained of in this action defendant Barton, a resident of the city of Grand Forks, North Dakota, was engaged in the business, among other things, of convoying, by means of hacks or carriages, persons from railroad stations in said city to various parts thereof, and to places in the city of East Grand Forks, in Minnesota, the two cities being on opposite sides of the Bed Biver of the North, and as such was a common carrier for hire. Defendant Smith was in his employ as driver of one of the hacks, and the relation of master and servant existed between them.
On the fifteenth day of December, 1906, plaintiff, a young woman of twenty-two years, came from her home in Bugby, North Dakota, to visit a relative at East Grand Forks. The train by which she came was late and arrived at Grand Forks between three and four o’clock in the morning. Being somewhat timid about crossing the bridge over the river between the two cities to the house of the relative she intended to visit, she engaged passage in defendant Barton’s hack, then in charge of defendant Smith. She informed him of her destination, and he agreed to convey her thereto. Two other persons were also passengers in the same hack, a lady and a gentleman, with whom plaintiff had no acquaintance. These two persons were conveyed to their destination, leaving plaintiff alone in the hack. The driver then started for the residence of plaintiff’s relative, but deliberately took a route going in another direction. After proceeding some distance he brought his team to a stop, alighted from his seat, fastened the horses by dropping the weight to which their heads were attached, entered the hack, and violently assaulted plaintiff. Her resistance was so vigorous and earnest that
The only question presented by the record is whether the damages awarded by the jury, $2,000, are excessive. The question whether the court erred in not giving to the jury a requested instruction, to the effect that plaintiff could not recover, if they found that the relation of master and servant between Barton and Smith had been suspended and did not exist at the time complained of, is not presented by any proper exception, and cannot be considered. The refusal was not excepted to at the trial, nor was it assigned as error on the motion for a new trial; and, moreover, that the relation of master and servant did in fact exist was conceded by a stipulation of the parties entered into at the opening of the trial. Nor was the failure of the court to give more extended instructions error. The court in general terms correctly gave the jury the rule of law applicable to the case, and, if more specific directions were desired, a request therefor should have been made. Bailey v. Grand Forks Lumber Co., 107 Minn. 192, 119 N. W. 786. As intimated by the chief justice in the case just cited, the rule applied in Robertson v. Burton, 88 Minn. 151, 92 N. W. 538, is not to be extended. It does not apply to the case at bar. We therefore turn our attention to the question of damages.
The assault upon plaintiff was aggravated and brutal. Assailed
Judgment affirmed.