190 Iowa 693 | Iowa | 1921
At the end of the trip, his hands, feet, ears, and nose were frozen, the hands especially being in very bad condition. A physician was called to attend him, early in the morning. He testifies:
“I found his hands very badly swollen, blisters on his hands, probably half an inch high, hands very much swollen and painful; the ears were frosted; feet frosted; but hands in worse condition. I treated him about six weeks.”
Plaintiff testifies to having suffered great pain from the injuries so received, to being rendered sleepless for a period of 28 hours, and being unable to return to work for four months, and that he still suffers a resulting numbness in his hands, and from an increased susceptibility to cold in the parts which were frozen.
He charges that his expulsion from the car was wrongful, and that, by reason thereof and without fault on his part, he was made to sustain the injuries described; and he demands a recovery of damages therefor.
By way of answer, the defendant admits the expulsion of plaintiff from the car, but justifies the act by the statement that plaintiff was intoxicated to such an extent as to render him an unsafe person to be accepted as a passenger on the car, and that he was in such condition that his presence in the car would have been obnoxious to passengers. It is further alleged that, after his ejectment from the car, plaintiff wrongfully climbed upon the bumper of the car and rode thereon from Warsaw to Hamilton ; and that, while thus trespassing and exposing himself to the severe cold, he suffered the alleged injuries, without fault on part of defendant. The issues were tried to a jury, and verdict returned for plaintiff for $1,000. From that judgment, defendant appeals.
I. The assignments of error are entirely too numerous and indulge in too much repetition to permit us to follow them in detail, but we shall try, under a few general heads, to discuss and
In support of the defense, the conductor testifies that, on his arrival at Warsaw on the evening in question, he went into the waiting room in the station to register, and while there, he saw plaintiff in the room, and noticed him taking a drink from a bottle; or, to use the witness’s own phrase, “When I went in, he had the bottle up to his mouth, and took a good healthy swallow.” The time between this incident and the occurrence in the car does not appear. The plaintiff denies having drunk anything while in Warsaw except a glass of beer, and a person who says he accompanied plaintiff during his stay in Warsaw and was with him in the waiting room corroborates the plaintiff’s story.
“I should say he was under the influence of liquor. When he passed by me within four or five inches, I could smell his breath.”
He admits that plaintiff was peaceable and orderly; does not pretend that he then accused plaintiff of intoxication or of any other offense or fault, but admits that he simply ordered him out of the car, and told him he could not ride. The car was not crowded or filled, having only about a half dozen passengers. Plaintiff admits that he brought home with him a bottle of whisky, but denies that he sampled its contents, and produces a witness who corroborates him in saying that the bottle was delivered in Keokuk with its contents and cork still inviolate.
The jury evidently found for the plaintiff that he was wrongfully expelled from the car, and such finding is abundantly sustained by the testimony. Such violation of the plaintiff’s rights as a passenger was an actionable wrong, and the trial court did not err in so holding.
There are numerous other cases of the same general import, which we will not stop to cite. In the Adams case, supra, we held that action Avould lie for damages in favor of a passenger
As was said by the Pennsylvania court, of the conduct of a person placed in such position by wrongful expulsion from a car:
“She was in no fault herself, and, being put in a position of embarrassment and difficulty, she was not bound to use the best judgment, but only good faith and reasonable prudence.” Malone v. Pittsburgh & L. E. R. Co., 152 Pa. 390 (25 Atl. 638).
The conductor who expelled the plaintiff in this case himself says that the night was “bitterly cold.” He left the waiting room locked against the plaintiff’s return to its shelter. It was an hour of the night when business places and homes were closed, and when plaintiff’s application for admittance at the door of a stranger might be answered with a loaded gun. That the man thus abandoned to his fate might perish, or undergo intense pain and suffering, was more than a merely possible result. It was such a likely result that the jury could well find that it should have been anticipated by the conductor.
If the ejection of the plaintiff from the car was wrongful (and such appears to have been the finding of the jury), the fact that plaintiff attached himself to the bumper and rode back
IY. Much criticism is directed against the charge to the jury, and error is assigned upon refusals to charge as requested. In so far as these requests state correct rules of law, they are fairly covered or included in the paragraphs given by the court on its own motion. The charge as a whole is quite favorable to the defendant.
The jury was clearly informed that the conductor had the right to eject the plaintiff if the latter was intoxicated, and that plaintiff could not recover damages for any injury suffered by him if he himself in any way contributed thereto. A further instruction informed the jury that plaintiff’s act in attaching himself to the bumper was a trespass, and that if, in so doing, he in any degree contributed to the physical injuries of which he complains, then for such injuries so contributed to by himself he could recover nothing.
The burden of proof was properly placed upon the plaintiff, and the rights of the defendant carefully guarded. Other propositions advanced by counsel for a reversal of the judgment appear to be without merit. The legal- principles involved are too well settled to call for extended debate. The fact issues have had fair consideration at the hands of the trial court and jury; the damages assessed are by no means extravagant; and there appears no good or sufficient reason for ordering a new trial. The judgment appealed from is, therefore, — Affirmed.