Lugner v. Milwaukee Electric Railway & Light Co.

146 Wis. 175 | Wis. | 1911

Winslow, O. J.

There was sufficient evidence to justify the finding that the plaintiff was a passenger on the street car at the time of his ejection. One does -not need to have paid his fare or even to have entered the car to have become entitled to the rights of a passenger. If he has entered the station with the good-faith intent to take passage and ability to pay his fare, he becomes to all intents and purposes a passenger. Karr v. Milwaukee L., H. & T. Co. 132 Wis. 662, 113 N. W. 62. If, as the plaintiff testifies, he was prepared and willing to pay his fare in case he could not ride free, the fact' that he asked for a free ride does not deprive him of his character as a passenger. It is the refusal to pay on proper demand or the entry upon the car with intent not to pay which has this effect.

*181The court was unquestionably right in changing the answer to the fifth question from “Ho” to'“Yes.” If, as the jury found, there was an assault committed by the conductor, it was confessedly committed while he was ejecting the plaintiff from the ear for nonpayment of fare. It is the conductor’s duty to eject persons who refuse to pay fare, and if he wrongfully ejects a person who has already paid or is ready to pay his fare, because, as he thinks, such passenger has not paid or will not pay his fare on demand, it '^s a wrongful act within the scope of his employment for which his principal is liable to respond. The fact that the act is wrongful does not of itself take it without the scope of his employment. His duty is to see to it that passengers pay their fare and to properly eject them if they do not. Of course his master does not authorize him to commit a tort in performing that duty, but if in his endeavor to carry out that duty he ejects the wrong person or commits a tort such as was found to have been committed here, it is a tort within the scope of his employment, though not authorized by his master. Johnston v. C., St. P., M. & O. R. Co. 130 Wis. 492, 110 N. W. 424.

The chief contention of the appellant is that the answer to the seventh question in connection with the evidence of the plaintiff himself acquits the defendant off liability. The plaintiff testified that as he went around the back end of the. car to the north the conductor leaned out of the rear trolley window and grabbed at him with his hand, and it frightened him, “and I gave a jump, one jump, and jumped right into the other car.”

The argument is that by this testimony the plaintiff has definitely fixed the proximate cause of his fright and the resulting collision with the west-bound car to be the grab or motion which he alleges that the conductor made at him out of the rear window of the car, and has thus eliminated from consideration the previous alleged assault and ejection from the car, and in fact everything which preceded the grab from the rear window. Such being the case, the defendant claims *182that when the jury found in answer to the seventh question that the conductor did not strike at the plaintiff from the rear window they negatived the tortious act which hy the plaintiff’s own testimony was the sole proximate cause of his injury. One difficulty with this contention is that the seventh question and answer taken together do not negative the making of a hostile motion hy the conductor out of the rear window. It is a complete negative pregnant. It finds that the conductor did not wilfully strike at the plaintiff with, the intention of injuring him hy violence. It does not find that the conductor did not strike at the plaintiff at all, hut hy inference finds that he did make a striking motion out of the rear window hut without wilful intent to injure the plaintiff thereby. Bliss, Code Pleading, § 332. Eurtker, the conductor admits that he went to the rear window at this exact time and leaned his body out of it. So it is a fact that the conductor appeared at the window; and, even admitting that the conductor made no motion with hostile intent, it seems certain nevertheless that the plaintiff saw him when he so appeared.

By the conductor’s own statement his appearance at the window was simply the concluding act of his endeavor to successfully and finally prevent the boys from riding on the car. The transaction was one continuous wrongful action from the time when, as the jury found, he started down the middle of the car towards the boys until he thrust his head and shoulders out of the rear window to see that neither of them was hanging on to the north side of the ear. There is really no place where a division line can be drawn. All the conductor’s acts, including the last, were a part of the improper ejection which the jury say by finding 11 proximately caused the plaintiff’s injuries. The improper ejection did not cease with the kick at the car step^ but only when the conductor ceased in his exertions to prevent the boys from riding.

The plaintiff testified, and the testimony is not incredible, that he was so frightened when the conductor rushed at him *183and raised Ms foot that lie did not know what he was doing, and that when the conductor appeared at the rear window and attempted to grab him, as he thought, it frightened him still more, and he jumped into the side of the west-bound car.

These considerations are decisive of the case. The findings of the jury as changed by the court are sustained by sufficient evidence and necessitate judgment for the plaintiff.

By the Court. — Judgment affirmed.