150 Iowa 313 | Iowa | 1911
-There is no contention on the part of appellant that the case was not properly submitted to the jury or that the verdict was not supported by the evidence, unless there was' a failure of the court to properly leave it to the jury to determine whether the conductor in assaulting and mistreating the passenger was acting as an official agent or representative of the state in -such manner and to such extent as that the defendant was not liable for what was done.
The appellant relies wholly upon the provisions of
Section 1. Any person who shall drink intoxicating liquor as a beverage on any passenger railway car or street car in service or who shall use profane or indecent language on such railway or street ear shall be guilty of a misdemeanor.
Section 2. Any conductor ,of a railway train or street car carrying passengers shall have the right to refuse to permit any person not in the custody of an officer, to enter any passenger car on his train or street car in his charge who shall be in a- state of intoxication; and shall have the further right to eject from his train’at any station or from his street car at any regular stop any person found in a state of intoxication or drinking intoxicating liquors as a beverage, or using profane or indecent language on any passenger car of his train or any street car under his charge and for that purpose may call to his aid any employee of the railway or street car company.
But it is contended that under the second section of the Act the conductor was charged with a duty in behalf of the state, and that in performing this duty he was not the agent or servant of the defendant, but a public officer for whose acts and conduct the defendant was not respon
. . That there, was no issue proper . for presentation to the
It is first contended that the court erred in refusing an instruction to the jury to the effect that, if plaintiff was guilty of using indecent or abusive language or was under the influence of intoxicating liquors and was boisterous and annoying to passengers, then the conductor was vested under the law of Iowa with full power and authority to suppress such acts and conduct, and in the- exercise of such authority the conductor was alone responsible for his acts while so acting, and defendant was not in any way liable for such acts. There is nothing in the statute to authorize any such instruction. The duty of suppressing misconduct of a passenger is one resting upon the conductor as a servant or agent of the carrier and is not created or enlarged by the statute above quoted. The other error complained- of is that the court failed to submit to the jury any issue arising out of the allegation in defendant’s answer that at the time of the alleged assault and misconduct plaintiff was in an intoxicated condition, had a bottle of whisky in his pocket over which there was loud, boisterous, abusive, and annoying controversy with other passengers on the car, etc. It is plain that this allegation, if proven, gave rise to no occasion provided for by the statute for the exercise of a public authority on the part of the conductor.
Counsel for appellant cites authorities in support of the proposition that, when a special peace officer is by authority of law duly appointed to preserve order or protect the persons or property in the cars or on the premises of a carrier or in places of public amusement, such officer, although employed and paid by the carrier or by the owner of the place of amusement, is still a public officer, and, so
We need not discuss these cases, for we hare already pointed out that they are not pertinent to the ease now before us.
Finding no error in the record, the judgment is affirmed.