161 N.C. 573 | N.C. | 1913
Lead Opinion
It has been repeatedly held that on motion to nonsuit the evidence which makes for defendant’s justification
Upon this question, a summary of the plaintiff’s evidence has been heretofore given. On the part of the defendant, there was testimony tending to show that plaintiff had not given the conductor any ticket and failed and refused to exhibit one when asked for it, claiming that his ticket had been already taken up. That after discussing the matter, the conductor insisted on a ticket or payment of fare, and compelled the payment of the cash fare. That his manner was considerate and that of plaintiff was improper, and that he showed signs of being under the influence of whiskey; that when plaintiff paid the money to the conductor he told him that he would get even with him at Rocky Point, two of the passengers testifying that he said this with-an oath; that when the conductor left the car after having told the plaintiff he would have to pay or be put off, or after he had paid, two passengers testified that they saw plaintiff move something from his hip pocket to the front pocket of his coat, and that the witness took it to be a pistol; that the witness informed conductor that he had better be careful and that he had seen plaintiff put a pistol in his coat pocket; that the conductor thanked him, and, going forward to the baggage car, told the baggageman about it, and asked him to come out and watch for him while he assisted the pas
Upon this and the other testimony relevant to the inquiry, we do not think that the trial court could properly tell the jury that if they believed the evidence the defendant was in default 'by reason of having taken hold of the man and searched him as he descended from the car. It is earnestly urged for plaintiff that at the precise time he was seized by the company’s employees, he was in the act of alighting from the ear with a lot of bundles in one arm, and that he was making no hostile demonstration towards any one and was not in a position to do so, and that one- cannot justify an assault upon another with intent to injure him by reason of mere rumors or reports, without more; there must be some overt demonstration amounting to a. present menace. As a general or abstract proposition, this may be true; but.it does not correctly state the case presented here.
A conductor of a railroad train is charged with the duty of properly looking after and protecting his passengers, and is held to a high degree of care in this respect. Penny v. R. R., 133 N. C., 221; s. c., 153 N. C., 296. So important is it considered ffhat in the performance of this duty he is clothed to some extent with the powers of a peace officer (Pell’s Revisal, 2604a), and if he fails to act in proper instances, and injury results, his very failure may be imputed to the company for wrong. And by reason of these exigent duties, and also of his
In the case as presented on this appeal, there'was no assault on the plaintiff as he alighted from the train with intent to harm him; he was at that time only seized and held until the conductor could search him, which he did by “feeling or slapping on the outside of plaintiff’s pockets,” followed by an immediate direction to turn him loose, and, restricting our decision to the facts embodied in the portion of the charge excepted to, and without prejudice to the other features of the evidence which may tend to inculpate or excuse the company, we are of opinion that plaintiff is entitled to have the case in this aspect submitted to the jury, to determine whether the conductor, under the principles stated and in view of all the facts as they reasonably appeared to him, was in their opinion justified in seizing and searching the plaintiff as he alighted from the train.
No doubt a contrary view could very well be maintained by referring to plaintiff’s evidence or even to the cross-examination of the defendant’s witnesses and accepting that as the correct version; but, under our authorities, this is not permissible here. As said in Dale v. Taylor, referring to a cross-examination of plaintiff’s witness, and in which he had qualified his statement as made in chief: “True, the witness seems subsequently to have qualified his statement, but we are not at liberty to select the more favorable portion of a witness’s statement and act on it for defendant’s benefit. In a motion of this kind, we have repeatedly held that the evidence making for plaintiff’s claim must be taken as true and interpreted in the light most favorable to him,” and, as stated by the same principle, defendant’s cause is entitled to the same treatment. For
New trial. .
Dissenting Opinion
dissenting: If' the evidence is considered in the light most favorable to the defendant, I think his Honor was justified in charging the jury that, in any aspect of it, the conductor was guilty of an assault.
It may be that the plaintiff had said he would fix the conductor when he reached Rocky Point, and that some one had told the conductor he had a pistol, but the fact is that he had no pistol, and that he was leaving the car quietly, making no demonstration, when he was seized by two employees of the defendant after he reached the ground, and searched by another.
The two employees had been stationed at the place where passengers alighted, for the purpose of watching the plaintiff, and upon the slightest demonstration could have stopped him; but, acting under the orders of the conductor, they preferred not to wait until there was necessity for action.
The conductor, who testified most favorably for the defendant, said, among other things:
Q. You saw Brown when he was getting off? A. He didn’t come down the steps I was on.
Q. You stood there, and didn’t you see him? A. Yes, sir; saw him when they made the alarm.
Q. He was not doing anything but moving along quietly? A. That’s all I saw him do.
Q. He had bundles in his hands? A. I think he had one bundle, one armful.
Q. Got off the train quietly and peacefully? A. I can’t swear what he was doing before.
Q. From your observation, was he doing or saying anything? A. Not at that time.
Q. I ask you, captain, if this man did anything in this world to you — attempt to strike you or offer any violence to you at all — until after you placed him under arrest ? A. He had not attempted; no.
I do not believe it can be law that three employees of the
