52 P. 1120 | Ariz. | 1898
Plaintiff in error instituted an action iu the district court of Coconino County against the defendant
The transcript contains what purports to be all the material evidence in the case, and we shall treat it as all of the evidence ; otherwise, plaintiff in error could not be heard to com- r plain about the instructions of the court to the jury.. If all the evidence be not before the court for review, the presumption would be in favor of the regularity of the court in giving the instructions to the jury to bring in a verdict for the defendant. The evidence shows, however, that on the fourteenth day of July, 1894, plaintiff was at Challender, in Coconino County, Arizona, for the purpose of buying stock to be used in his butcher business; that he lived at Prescott, Arizona, and was desirous of going from Challender to Williams, Arizona, a station just west of Challender; that Challender is a small way-station on the line of the road; that the plaintiff was there on or about the 14th of July, and at that time there was no station-agent at Challender; that on the afternoon of that day a train came along going west through Challender to Williams, which was made up of freight-cars, two empty passenger-ears, and the car of the superintendent of the road; that the train, as the result of a signal, slowed up in approaching the station, but did not stop, and as the train slowed up the plaintiff boarded one , of . the passenger-cars while it was in motion; that he there saw a. man on the platform of the car that he boarded whom he took to be a conductor; that the man was not in uniform, but he handed
Plaintiff further showed from the testimony of the superintendent, who was on the train at that time, that the train was made up of several cars of coal, two deadhead coaches, and the officers’ car, in which he was riding; that the train was a special freight-train, and no person had authority to permit passengers to be carried on that train on that day without the permission of himself or the superintendent of transportation; that the train was not authorized by any one to carry passengers; that the train was slowed up in acknowledgment of signals to stop as the train approached Challender; that he saw the plaintiff get on the train, and immediately sent word to the conductor that this was not a passenger-train, that he could not carry passengers, and that the plaintiff be put off; that if any passengers were on the train they were there without his knowledge or permission; that it-was against the rules of the company to carry passengers on that train; and that he would not have allowed tbe train to stop at Challender either to take on or let off passengers on that day. When plaintiff had introduced the foregoing evidence he closed his case, whereupon the defendant moved the court to instruct the jury for a verdict for the defendant, which was given as before, stated.
We have examined many authorities cited in the brief of plaintiff in error, and find them to bear more particularly upon the question of relation between the passenger and carrier after ticket purchased or contract made. We have also examined many cases cited by defendant in error as to the right of a railroad company to designate upon what trains passengers may ride, and as to the right of a railroad com
. . . They are not required to carry passengers on their freight-trains, or freight on their passenger-trains, but they may, if they choose, do either.” And also from the ease of Railroad Co. v. Nelson, reported in 59 Ill. 110: “Railroads are created for the transportation of both persons and property, and, from the time when first introduced into use, such have provided different modes of carrying each. They have furnished coaches constructed, exclusively for the conveyance of passengers, and cars for the conveyance of freight. Their construction is entirely different, and there is a great difference in the two kinds of trains, and each is only adapted to the purpose of its construction. . . . The law has not required such corporations to carry passengers on their freight-trains, nor freight in their passenger-coaches. It only requires them to carry both, leaving it to them to regulate the manner in which it shall be done, and custom has sanctioned the mode adopted. It has never, so far as we are aware, been held that railroads are required to provide the means for carrying passengers on 'their freight-trains. That is left to their discretion, and it is a matter of choice with them whether or not they shall, for the accommodation of the public, adopt such mode of transporting passengers; and being a matter of choice, and not a duty, they may, in adopting such a mode, impose all reasonable rules consistent with the safety of passengers and the management of their business. ’ ’ Similar expressions
The defendant in error first demurred to the evidence, which demurrer was allowed by the court, but no judgment was rendered thereon. Afterwards defendant asked the court to instruct the jury to bring a verdict for it, which was given, and verdict so rendered. It has been decided by this court in the ease of Bryan v. Finney, reported in 3 Ariz. 34, 21 Pac. 332, that an involuntary nonsuit cannot be allowed under the statutes of Arizona. The same rule prevails in the federal circuit and district courts, and a demurrer to the evidence would operate in the same way as a motion for a nonsuit. It takes from the jury all consideration of the case, and the judg
Sloan, J., Doan, J., and Davis, J., concur.