59 Wash. 15 | Wash. | 1910
The respondent recovered a judgment against the appellants for $1,000, on account of an assault committed upon him by the appellant Roehl. The plaintiff alleged, that the defendant Roehl was an agent and servant of the railway company, employed as a watchman at its station at Auburn; that on March 21, 1909, plaintiff purchased a ticket at that station, entitling him to transportation from Auburn to Covington Station; that after purchasing such ticket, and while peacefully awaiting the arrival of the train, the defendant Roehl wrongfully endeavored to eject him from the station and violently assaulted plaintiff and inflicted severe injuries upon him. At the close of plaintiff’s evidence, the defendants moved the court for a nonsuit, which motion was denied.
About eleven o’clock at night the agent by telephone called Mr. Roehl, who was town marshal of Auburn and a deputy sheriff of the county of King, to come to the station. Mr. Roehl, in response to this call, came to the station, and was informed by the agent that there were a number of undesirable persons in the waiting room who had not purchased tickets and who did not intend to do so, and that he desired such persons ejected. The agent also informed Mr. Roehl that several persons there held tickets. Mr. Roehl then told Mr. James to go into the waiting room and notify all persons who did not have tickets, and who did not intend to purchase tickets, to leave. The agent then, followed by Mr. Roehl, went from his office to the waiting room, and quietly requested one or two persons to leave. At the same time Mr. Roehl began to push several persons from the room, among whom was the plaintiff. Mr. Roehl struck the plaintiff a blow on the neck with his hand or fist. About this time Mr,
It is argued by the appellant railway company, in substance, that Mr. Roehl was not the agent of the company, and was acting in his capacity as a peace officer; and that, if he was the agent of the company, he acted wholly outside of the scope of his authority when he assaulted the plaintiff. We think both of these contentions are untenable. Mr. James Was the regularly employed agent of the company and had charge of the station. He called Mr. Roehl to his assistance in order to eject some persons from the building. Mr. Roehl was a peace officer in that vicinity, but upon this occasion he acted at the request of Mr. James. He was assisting the agent, and the company was bound by his acts as the acts of the agent. There is no claim that any of the persons in the station were misbehaving, or were rude or offensive in any way in the presence of Mr. Roehl, except that they were occupying seats within the station in order to keep warm. Under these circumstances it was the duty of the agent to know, and to inform Mr. Roehl, who the passengers were in the station, and who were entitled to remain. If the agent had personally committed the assault, the company would clearly be liable. The fact that it was committed by one who was called in by the agent would not relieve the company, unless such person acted wantonly without the scope of his authority. It is true the agent had told Mr. Roehl that he would notify those to leave who were not entitled to remain, and that while he was doing so Mr. Roehl assumed that the plaintiff had been, or would be, notified, and assaulted him. Up to this time the plaintiff did not know what the agent or Mr. Roehl desired. The plaintiff being a passenger Was entitled to protection, and when it was shown that he was assaulted by one acting at the request of an agent of the company, this clearly made a prima facie case to go to the jury, for it was the duty of the agent to notify the
In the course of the instructions to the jury the court said;
“I charge you that a person that goes within one of the depots of a railroad company and there purchases a ticket and is compelled to wait until the coming of a train to transport him from that depot provided by the defendant company, that he at once becomes a passenger and that it is the duty of the company then to use as against its own machinery and its own employees toward him the highest degree of care for his protection and safeguarding.”
After the jury had retired, the court recalled the jurors, and said to them:
“My attention has been called to my phraseology in my instruction given to you respecting the duty of the railroad company to exercise toward its passengers the highest degree of care. That was given to you without any qualifying words. You are to understand by the terms ‘highest degree of care’ that it means the highest degree of care compatible-with the safe and reasonable conduct of its business. The railroad company is not an insurer to any passenger that they will not be assaulted; that they will not have accidents; but the law does hold them to the exercise as against its own machinery and appliances, its cars and the operation of its road and the conduct of its employees, to the exercise of the highest degree of care compatible with the conduct — the ordinary conduct and course of its business that a reasonably prudent man would give.”
It is argued by the appellant that this instruction is erroneous, because it injects into the case the question of care in regard to the use of machinery and appliances, when there
But, assuming that the court meant to instruct the jury by this instruction that the railway company was bound to use the highest degree of care to prevent the assault, we think the instruction was not error. The rule is stated in 6 Cyc., page 600, as follows:
“The duty of the carrier to protect the passenger must be discharged by means of his servants engaged in carrying out the transportation contracted for. Therefore if any servant of the carrier while thus engaged assaults a passenger or otherwise infringes the right of protection to which he is entitled, the carrier is liable irrespective of whether the servant in the thing done was acting for his master or for his own purposes. ... So long as the passenger is being transported, or is on the carrier’s premises legitimately in connection with such transportation, and the servant is there*23 employed about the business of the carrier in his relation to the passenger, the duty of protection exists.”
It is conceded in this ease that the respondent had purchased his ticket, and was rightfully in the waiting room, and was orderly. He was, .therefore, a passenger, entitled to protection as such. If Mr. James, the agent in charge of the station, had made the assault himself, there could be no question of care in the case, and no doubt about respondent’s right to recover. The fact that Mr. James called Mr. Roehl to his assistance in removing persons who were not passengers, did not relieve the appellant of the positive duty to protect the passenger from assault by its employees. Mr. James was required, therefore, not only to notify Mr. Roehl who the passengers were, but to prevent his assault upon the passengers. Mr. Roehl, "for the purpose of clearing the waiting room in question, was acting in the place of the agent. He was not a third party for whose acts the company was bound to use only ordinary care to prevent injury, as in the cases cited in the appellants’ brief. The cases do not appear to be in harmony upon the question of the degree of care, owing by a carrier to a passenger, in regard to the safety of its stations and facilities. Some of the cases hold that ordinary care only is required, while others hold that the highest degree of care is necessary. The case of Fremont etc. R. Co. v. Hagblad, 72 Neb. 773, 101 N. W. 1033, 106 N. W. 1041, 4 L. R. A. (N. S.) 254, a case decided in the state of Nebraska, cites many of the cases upon that question, but we are of the opinion that, under the conceded facts in this case, if the question of care is to be considered at all, the agent of the company was bound by the highest degree of care, and the instruction was not error.
We are satisfied, however, that the verdict was excessive. No serious personal injury was inflicted upon the respondent. He suffered pain for about thirty-six hours, and also some inconvenience for about thirty days. But he suffered no pecuniary loss or loss of time. After the agent discovered
The questions presented by the appeal of Mr. Roehl are the same as the ones above considered and need not be considered further. The judgment appealed from is reversed, and the cause remanded with directions to grant a new trial unless the respondent, within thirty days after the remittitur is filed in the lower court, shall remit $500 from the verdict, in which event the judgment will stand affirmed for $500. Appellants to recover the costs of this appeal.
Rudkin, C. J., Crow, Parker, and Dunbar, JJ., concur.