101 Mich. 5 | Mich. | 1894
Plaintiff claims that he was unlawfully ejected from a passenger car of the defendant’s train while it was in motion, and was injured. »
“The said plaintiff, after purchasing the said ticket, and on, to wit, the said 19th day of November, went on the cars of the said defendant from .Manistique to Hunt’s Spur, and afterwards, to wit, entered a car of the said defendant, on one of its passenger trains, to return to Manistique; and, relying upon the representations made by*8 the agent of the defendant at the time of the purchase of the said ticket, he requested the conductor to give him a lay-over check, or allow him to stop off, at Whitedale, and proceed to Manistique on the next train, which the said defendant, by its said agent, ‘ conductor absolutely refused to do, and the said conductor refused to carry him unless he would pay a large amount, to wit, 35 cents, as additional fare, which he was unable to do, upon which he ordered him to leave the car, which the plaintiff refused to do, upon which the conductor signaled the engineer to slack the speed of the train, and he, the said conductor, and another agent of the defendant, called a ‘brakeman,' seized violently hold of the plaintiff, and with force and violence, and against his will and resistance, not waiting for the said train to stop, and while said train was running at a high rate of speed, to wit, at the rate of 10 miles per hour, forcibly ejected said plaintiff from and off the cars, throwing him with violence from the platform of the cars to the ground, while the cars were so in motion.”
The opening of counsel to the jury was based upon this declaration.
The original declaration and the opening statement of •counsel were based upon the allegations that plaintiff was lawfully upon defendant's train; that he was in possession •of a ticket which entitled him to ride over the portion ,of ike road he was then on; that he was on the return trip; that he asked the conductor for leave to stop over at Whitedale; that the conductor informed him that he could not, without paying 35 cents extra, which would make the regular fare for the trip; and that, refusing to do this, he was ejected from the train before reaching Whitedale,— the station where he desired to stop over. After the plaintiff was sworn, and it was ascertained by his counsel, conceded, and held by the court, that he could not recover upon that declaration, under the testimony which the plaintiff gave, the plaintiff was permitted to amend his declaration by changing the date, the direction, and the train by which he was traveling. The amended declaration showed that he was not a passenger, but a trespasser, upon
“Unless you find, by a fair preponderance of evidence, and of all the evidence, in the case, that the plaintiff was shoved or pushed, or in some way forcibly ejected, from the train while it was in motion, as alleged in his declaration and claimed in his testimony, your verdict must be for the defendant.”
The jury should not; in a .case of this character, be left, as they were under this instruction, to find that the plaintiff was “ in some way forcibly ejected from the train while it was in motion,” other than that shown by the evidence and alleged in the declaration. He had stated how he was ejected, viz., by being pushed or shoved off while the train was in motion. The, instruction should
“ A defendant railway company is always responsible for the acts of its employés when they are on duty, acting in the line of'their employment; and if you should find that the conductor, Snyder, or any other employe of this- company, acting under the conductor's orders, ejected Mr. Brassel, or compelled him to alight, from the cars while they were in motion, as he testifies to, and if he was thereby injured, the defendant is liable."
The error in this charge lies in the fact that there is no evidence in the record showing, or tending to show, that Mr. Snyder gave any instructions or orders to the brakeman, or any one else, to push or shove the plaintiff from the train. There is no testimony, outside of the plaintiff's, tending to show that any violence was used. Several witnesses on behalf of the defendant testify that the train had stopped, and that no physical force was used. The plaintiff's own testimony on this point is so contradictory that it is at least questionable whether, as a matter of láw, the court should not have directed a verdict for the defendant. In one part of his testimony, he said the conductor pushed him off; in another, “There were two brakemen, or men employed on the train, came along, and pushed me off;” and again, “I got off about two and -a half miles from Whitedale."
“1. Was the plaintiff in the smoking room, next in front of the dining car, when the conductor called for His fare?
“2. Was the train at a stop when the plaintiff left the car?
“ 3. Did the conductor push the plaintiff from the caito the ground while the train was in motion?"
The jury returned into court with a general verdict,
“Mr. Hurst: I would like to call for the special questions.
“Court: Have you the special questions?
“Foreman: Yes, but they are not signed.
“Court: Are they not answered?
“Foreman: No, sir.
“Court: Have you not taken any action in regard to them?
“Foreman: It was talked of.
“Court: What do you wish to say in regard to it?
“Foreman: That they didn’t feel like signing it, for some cause.
“Mr. Hunton: The result of this is, then, that it is no verdict at. all.
“Mr. Hurst: Are they not virtually covered by the verdict?
“Court: There would not be any object in special questions, if they were.
“Mr. Hurst: We ask that the jary go back, and, answer the questions.
“Court: These special questions should be answered, gentlemen, and I think you had better retire.
“Mr. Hurst: I think, technically, they are probably not covered by the verdict, although the verdict practically covers them.
“Court: I hardly think that is a proper suggestion to make.
“Mr. Cuntan: I take exception to that remark of Mr. Hurst.
“Mr. Hurst: I was merely making a remark to the court.”
The jury then retired, and returned, answering the first two questions “No,” and the third, “Yes.”
It is manifest t]¡iat the jury did not answer the special questions for fear they would interfere with their general verdict." No other conclusion can be drawn from their neglect to answer them until directed by the court to do so. Suggestions by plaintiff’s counsel at such a time were entirely out of place, and it was a clear intimation to the
It is quite possible that a case might be presented in "which we would be justified in holding that these were not prejudicial errors. It is impossible to read the record in this case without coming to the conclusion that the jury utterly ignored the clear weight of the evidence in the case. As already stated, the finding by the jury that plaintiff was ejected from the train while ij; was in motion is based upon the testimony of the plaintiff alone. His testimony was not consistent, and there is strong evidence which casts doubt upon his credibility. If his testimony be true, then he was thrown from the train while it was running at the rate of 7 or 8 miles an hour, on rough and frozen ground, and if, in consequence of that act, he had been killed, the person or persons who pushed him off would have been guilty of manslaughter. Plaintiff produced only one witness who was in the car with him at the time of the occurrence, — Mr. Hill, — who testified that the train stopped. He said he did not see the transaction, and that, before they started up, some one said they had put a man off the train. The conductor testified that the train stopped, that he got off first, that plaintiff then stepped off, and that no physical force was used. One Woycke, who was section foreman, was hear the place at the time, and was not in the employ of the company at the time of the trial,, but had gone to farming, testified that the train was standing still when plaintiff got off, that the conductor got off ' first, and that plaintiff walked up to ' witness, and talked with him, but made no complaint that he had been pushed off, or that
Plaintiff claims to have been injured in one of his knees. He made no claim of injury to those who saw him immediately after, and at once walked four miles to a lumber camp. His own physician testified that he would eventually get the full motion of his knee joint, but not in less than a year. His other physicians testified 'that in their opinion he would always be somewhat lame. ■ Upon this testimony the jury rendered a verdict of $7,000.
The refusal to grant a new trial upon a verdict rendered upon such evidence is very close to an abuse of judicial discretion. While this Court, under its prior decisions, cannot interfere with this discretion, it can and ought to require that the trial be conducted in strict accordance with the rules of law, and cannot hold' that errors such as those pointed out above were not prejudicial. The motion for a new trial *in this case was made before the statute authorizing exceptions to the refusal to grant such motion, and a review thereof in this Court, went into effect.
The judgment must be set aside, and a new trial ordered.
