Chicago, M. & St. P. Ry. Co. v. Anderson, 168 F. 901

Chicago, M. & St. P. Ry. Co. v. Anderson

168 F. 901 | 8th Cir. | 1909

HOOK, Circuit Judge.

The plaintiff, Roy Anderson, recovered a judgment against the railway company for personal injuries sustained by being compelled by one of its trainmen to get off of a freight train while it was in rapid motion. Anderson was a trespasser, and claimed he was forced to get off by threats of personal violence at a time when it was very dangerous to do so. He first said a brakeman threatened him, but afterwards identified the conductor as the man. The company presents six assignments of error.

The first assignment, that the verdict of the jury “is not justified by the evidence and is contrary to law,” is too general and indefinite to raise a question for the consideration of this court. Wilson v. Everett, 139 U. S. 616, 11 Sup. Ct. 664, 35 L. Ed. 286; Oswego Township v. Travelers’ Insurance Co., 70 Fed. 225, 17 C. C. A. 77.

The second is that the trial court erred in denying the request of the railway company for a directed verdict. It will serve no useful purpose to set forth the testimony. It was conflicting, and, while the preponderance may have favored the defendant, it cannot be denied there was substantial proof supporting the verdict.

The third and sixth assignments relate to instructions given the jury; the contention being that, as there was no proof upon the subject, it was error for the court to assume the conductor had authority to eject a trespasser from a moving train. It is said that “the relation between the master and servant in such cases is reduced to one *903of agency, to establish the scope of which proof must be offered,” and that “no presumption can possibly arise as to the authority of a conductor upon a freight train to deal with persons seeking transportation thereon.” The law is, however, that courts take judicial notice of the general features of railroad operation, that the conductor has the control and management of the train to which he is assigned, and that the protection of the rights of the company against trespassers is within the general scope of his authority. A misuse of such authority subjects the company to liability for compensatory damages.

In the fourth and fifth assignments complaint is made of the refusal to give two instructions that were requested. In each of them it was sought to direct the attention of the jury specially to statements which witnesses testified Anderson made after the accident and which were not in harmony with his testimony at the trial, and to have the jury instructed that, if they found the statements were understandingly made and were true, their verdict should be for the defendant. The trial court was right. The vice in such instructions is that they single out and give undue prominence to particular matters of evidence. Western Coal & Mining Co. v. Berberich, 94 Fed. 329, 36 C. C. A. 364.

The judgment is affirmed.