236 Pa. 110 | Pa. | 1912
Opinion by
On June 14, 1909, Albert L. Kelley, the plaintiff, purchased a ticket at Pittston for Laceyville, a station on the line of the defendant company’s road beyond Tunkhannock, and boarded a train for his destination. When the conductor examined the ticket he informed the plaintiff that the train did not stop at Laceyville and that he must get off at Tunkhannock, and take a later local train for Laceyville. He punched the ticket, made an endorsement on it, and handed it back to the plaintiff. These facts are not in dispute. The plaintiff claims that as he was leaving the train at Tunkhannock he was assaulted and severely injured by the defendant’s brakeman while descending the steps to the ground. He alleges that he was struck on the back of the head and pushed from the train, that his right ankle joint was sprained, the outer ligaments of the ankle were ruptured, and that he was otherwise injured. He further claims that he was assaulted by the brakeman after he had passed from the steps of the car to the ground and while he was still near the train.
The defendant admits that the plaintiff was required to leave the car at Tunkhannock, but alleges that he was not assaulted nor forcibly ejected, that he was intoxicated and, as he was descending the steps of the car, was very abusive and turned upon the brakeman, who put
This action was brought by the plaintiff to recover damages for the injuries inflicted by the brakeman on the plaintiff as the latter was leaving the defendant’s train. The jury returned a verdict in favor of the plaintiff, and from the judgment entered thereon this appeal was taken. The first and second assignments allege the court erred in refusing to grant a new trial, and this is the principal reason assigned by the defendant for the reversal of the judgment. The case was submitted to the jury in a charge to which no exception was taken, and in which the rights and duties of the passenger and the carrier were accurately and clearly defined. The learned judge charged that if the plaintiff was unlawfully assaulted by the brakeman while acting within the scope of his authority and in the performance of the duties assigned him, there could be a recovery, but if he was misconducting himself on the train, as alleged by the defendant, and the brakeman did not assault or strike him and used only such force as was reasonably necessary to get him to leave the train, the plaintiff would have no reason to complain and would have no action against the company for anything that occurred on the car or in going down the steps. As to what occurred after the plaintiff was on the ground or platform, the court instructed the jury that if he was unlawfully assaulted by the brakeman while the latter was acting within the scope of his authority, and he did not by his own unlawful act precipitate or cause the trouble, or by his negligence and conduct assist in producing it, there could be a recovery for
The plaintiff’s own testimony fully sustained his contention as to what occurred at the time of the alleged assault. He was accompanied by his brother who purchased a ticket at the same time, entered the car with him, occupied the same seat, and was immediately in front of the plaintiff as the two were descending the car steps in leaving the train. The brother corroborated the testimony of the plaintiff as to what occurred while they were leaving the car and after the plaintiff was on the ground. They both denied that the plaintiff was intoxicated and that there was any improper conduct or unbecoming language used by him on the occasion. The plaintiff’s story was further corroborated by certain admissions made by the trainmen and contradictions of each other by the defendant’s witnesses. The brakeman admitted in his testimony that he pushed the plaintiff off the steps after he had threatened him. One of the physicians testified that the plaintiff had a raised lump at the base of the skull in the back of the neck, which, it is claimed, must have been produced by a blow struck while the plaintiff was descending the steps in view of the admission of the brakeman that he only struck the plaintiff twice after he had reached the ground and neither time at this place on the body.
The defendant introduced several witnesses, the greater number being employees of the company, who contradicted the testimony of the plaintiff and Ms
We see no ground for convicting the court below of error in refusing to grant a new trial. There was testimony on the part of the plaintiff, which, if believed, warranted a verdict in his favor. Part of it came from eye witnesses who had an opportunity to see the whole occurrence. These witnesses were corroborated to some extent at least by other facts disclosed by the testimony. The jury, as it was their province, manifestly gave credence to the plaintiff’s fitnesses, and disbelieved the witnesses of the defendant so far as their testimony conflicted with the testimony of the plaintiff. There is no assignment alleging that the evidence was not sufficient to justify the court in submitting the case to the jury. The story of the plaintiff’s witnesses was not an incredible one nor inherently improbable. Apparently the only reason for disbelieving it would be that it was contradicted by a greater number of witnesses called by the defendant. As pointed out above, the preponderance of witnesses in number does not necessarily determine the weight of the evidence.
We do not think the conduct of the tipstaff, alleged to be a sufficient reason for a new trial, is to be commended. It was his duty to report to the judge or the court, if in session, any reasonable request of the jury. It was not for him to determine what action the judge would take, or whether the latter would sit on Sunday for the purpose of acting on the request. It is to be presumed that the judge was accessible, and whether it
If technically the court should have excluded Mr. Drake’s testimony as to the duties of a brakeman, it was, under the circumstances, harmless error to admit it. He testified to nothing that conflicted with the duties
The judgment is affirmed.