63 Minn. 380 | Minn. | 1896
This is an action for the recovery of damages,, which the plaintiff claims to have sustained by reason of an assault and robbery committed upon him by the defendant’s employés while he was a passenger upon its railway train. He recovered a verdict for $268.33, and the defendant appeals from an order denying its-motion for a new trial.
The plaintiff alleges in his complaint that he was, on September 7, 1894, a passenger for hire on the defendant’s railway train from Grookston to Barnesville in this state, and that after the train reached the latter place, and while he was still a passenger, he was-assaulted and robbed of $75 by the defendant’s employés. These allegations are denied by the answer, but the verdict declares their substantial truth, the jury finding specially that plaintiff was such passenger. The question, then, here for decision is whether the verdict is sustained by the evidence and the law applicable thereto. The verdict cannot be sustained if the relation of carrier and passenger did not exist between the parties at the time of the alleged assault upon the plaintiff. This conclusion necessarily follows from
We are of the opinion that the finding of the-jury that the plaintiff was a passenger on the defendant’s railway at the time of the assault upon him is not sustained by the evidence, but is so manifestly against the evidence that it must be set aside. The relation of passenger and carrier is created by contract, express or implied, and we are unable to find any evidence in the record warranting the inference that this contract relation ever existed between the parties hereto. The fair import of the plaintiff’s own evidence is that, as to the defendant, he was a mere stowaway, whom the employés of the defendant fraudulently secreted, with his collusive co-operation, in an exclusively freight car, half filled with grain, for the purpose of enabling him to ride at less than half fare, to be paid to such employés for their personal use.
It was established on the trial, beyond reasonable controversy, that some time during the forenoon of September 7, 1894, a freight train of the defendant, in charge of a conductor, with two brakemen, arrived at Crookston on its way to its destination, Barnesville, where it arrived at 8:55 o’clock p. m. of the same day. There was a caboose attached to the train, and. the conductor was authorized to receive and carry passengers on his train in the caboose, and was prohibited from carrying them in any other place. Neither of his brakemen had any authority to collect fares from passengers. It did not appear that notice of these rules was ever brought directly to the attention of the plaintiff, or that the conductor wore any badge or mark designating him as such. The fare for a passenger from Crookston to Barnesville was $2.55, and at the time in question the defendant had a ticket office opened at Crookston for the sale of tickets to passengers. The plaintiff did not speak English, and had never before ridden on a freight train, but he had been in this country two years, and had traveled on passenger trains.
The plaintiff’s testimony as to his taking passage on the freight train, to which we have referred, and what happened to him, is substantially as follows: That he arrived at the Crookston sta
The two companions of plaintiff gave testimony substantially corroborating him, and one of them testified that he had ridden on freight trains before, and knew that the caboose was the place where passengers rode, but that they were told by the trainmen that the
We do not deem it necessary to state the evidence more in detail, but we have examined the whole record, and have reached the conclusion that the finding of the jury that the plaintiff was a passenger is not sustained by the evidence or the law of the case. None of the trainmen had any authority to carry passengers on this train in question, except in the caboose, and the external and internal appearance of the car into which the plaintiff was, as he claims,, invited, the mode of entrance into it by breaking the door, and the-fact that it was loaded with grain, all negative any apparent authority of the brakemen to collect his fare, and carry him in this exclusively freight car as a passenger, for whose safety the defendant was bound to exercise the highest degree of care. These physical facts were notice to him that he was not a passenger, and that the trainmen had no authority to collect his fare or carry him in this car. What his rights would have been if he had paid his full fare to a brakeman while riding in the caboose we need not determine, for the case with which we have to deal is one where the plaintiff was riding in a car, the very appearance of which would indicate to the most inexperienced that it was not used by the defendant for the carriage of passengers. Everything connected with the entrance of the plaintiff into this car, from the wink and the motions of the trainmen when he first saw them, to the breaking of the car door and his getting into the car, must have made it perfectly manifest to him that the brakemen were acting, not only beyond the actual line of their duty, but beyond the apparent scope of their authority, and that he was in a place where he had no right to be.
A carrier, in undertaking to carry passengers safely, undertakes-to do so only on condition that they place themselves under his directions in the particular places set apart for their accommodation;
Order reversed, and a new trial granted.