75 W. Va. 623 | W. Va. | 1915
Action by plaintiff for injuries sustained while a passenger on defendant’s railway, in consequence of an alleged unlawful assault.upon him by defendant’s servants and his unlawful arrest and removal by them from the railway ears, and imprisonment in a certain lockup or prison.
On the trial the jury returned a verdict for plaintiff for $500.00 compensatory damages, and $1,000.00 punitive damages, and the aggregate verdict of $1,500.00, and on which the court pronounced the judgment complained of on this writ of error.
The first point of error is that the declaration is bad on demurrer. The specifications of error are, first, that it discloses plaintiff a trespasser on the train; second, that the acts complained of are alleged to have been done “wrongfully, negligently, unlawfully, injuriously, willfully, maliciously, and violently”, inconsistent causes of action, and which may have resulted in an inconsistent verdict.
"We deny the proposition involved in the first specification, upon the ground, as we shall hold on the merits, that plaintiff was at the time of his alleged injuries, a passenger, and entitled to all the protection of a passenger, imposed on defendant by law. On this proposition Loy v. Northern Pac. Ry. Co., 122 Pac. 372, is cited and relied on. That was the case of a passenger having purchased a ticket over the wrong railroad, and boarding the train on which he intended to take - passage, and was ejected by the conductor because he refused to pay, or produce a ticket entitling him to passage. Such is not the case here presented.
On the second specification, defendant’s counsel rely on Rideout v. Winnebago Traction Co., (Wis.) 101 N. W. 672, and Cleveland, &c. Ry. Co. v. Miller, 149 Ind. 490. We do not think these cases support their proposition to the extent at least of rendering the declaration bad on demurrer. Apropos to this question the Wisconsin court says: “The
But why need we dwell on this subject? Our statute, section 29, chapter 125, serial section 4783, Code 1913, ctires any supposed defects in this declaration. See that section and the decisions cited under notes 12 and 13 to that section, and especially Union Stopper Co. v. Wood, 66 W. Va. 461. The demurrer was properly overruled.
The propositions covered by defendant’s second and sixth assignments of error, namely, that the court should have stricken out plaintiff’s evidence and directed a verdict, as proposed by defendant’s several motions and instructions, rejected, all depend upon the leading and controlling question, namely, was Turk, the plaintiff, a passenger, as he alleges, or as defendant contends a mere licensee or trespasser, at the time of the injuries complained of ?
We must, therefore, devote ourselves to this question, was Turk a passenger? The controlling facts are few, and not
This evidence of plaintiff is not materially controverted by these trainmen or Sparks, the deputy sheriff, except the trainmen deny that they assisted in arresting' plaintiff, and in taking him to the lockup, and they say plaintiff used profane language toward them and Sparks. That plaintiff was subjected to very unusual and rough treatment, and even gross and wanton abuse by these men, can not be doubted.
Do these facts make plaintiff a passenger at the time he was
That plaintiff had become a passenger and had paid his fare, on the car from which he was so ejected, is conceded. And that defendant company had not performed its contract, for which plaintiff had paid the consideration demanded, and who still held a ticket cancelled to Iaeger, is also a conceded fact. But it is claimed that on returning to Berwind, and notwithstanding the circumstances and conditions existing there, the temporary suspension of the journey to Iaeger that night, the train was thereby annulled until morning, and that the relationship of carrier and passenger was thereby also suspended, and this notwithstanding the permission of the conductor that plaintiff might remain' in the car until morning; that plaintiff was thereafter no longer entitled to protection as a passenger, but, if at all, only as a trespasser or licensee, until the journey to Iaeger was resumed in the morning.
It is well settled law that the temporary suspension of a contract of carriage, until arrangements can be made by the carrier to overcome difficulties due to washouts or other obstructions on the track, does not sever the relationship of carrier and passenger already begun. And that during such time the passenger is entitled to all the rights pertaining to a passenger on a train moving towards the point of destination, and stipulated in the contract. 4 R. C. L., section 496; Dwinelle v. N. Y. Cent, & K. R. R. Co., 120 N. Y. 117; Killmyer v. Wheeling Traction Co., supra. And these cases hold that under such circumstances the obligation still rests on the carrier to protect its passengers against any injury from the
It is not pretended in this case that the relationship of carrier and passenger, as between plaintiff and defendant, ceased until the train was run back to Berwind, and there was reasonable time given to alight. The proposition is that regardless of the circumstances of the night and conditions existing at Berwind, defendant had the right to suspend this relationship, eject the passengers, and leave them to shift for themselves, without shelter and protection, and thereby relieve itself of all duties and liabilities of carrier to passenger. We do not think this can be the law of this case. What defendant’s rights might be under other and different circumstances, we are not called upon to say, but as applied to the facts in this case the law ought to be, and we think is, otherwise. When one goes to a railroad station at a proper .time and with intention in good faith to become a passenger, he ordinarily occupies the status of a passenger, even though he has not purchased a ticket. Illinois Cent. R. Co. v. O’Keefe, supra, note 76 and cases cited. And high authority is found for the proposition' that if a person waiting at a station for passage on a train soon to depart, and who is invited by.the ticket agent to sit in an empty ear standing on a side track, while the station room is being cleaned, is entitled to the same protection from the company while in the car as. while waiting in the regular waiting room. Shannon v. Boston etc. R. R. Co., 78 Me. 52, 4 R. C. L. section 491, p., 1035. Upon reason and the general principles of these authorities applied to the facts in this ease we think plaintiff continued in the status of passenger at the time he was'ejected from the car and maltreated and imprisoned by defendant’s, servants and.Sparks.
Having reached this conclusion the question remains, is; defendant liable in damages for the injuries inflicted on. plaintiff by its servants and Sparks ? While the relationship-of passenger and carrier continues, the carrier is held to a. very high degree of care in protecting its passengers not only-
The only other point of error which we- will note is that the verdict of the jury awarding compensatory and punitive-damages is excessive, and that plaintiff’s instruction number-3, given, and on which the verdict was evidently predicated,, is erroneous. That instruction is as follows: “The court further instructs the jury that if they shall find the defendant guilty, they are, in estimating the plaintiff’s damages, at;
In view of the conclusion reached, we find no error in the giving or refusing of the other instructions, and are therefore of opinion to affirm the judgment.
Affirmed.