74 W. Va. 678 | W. Va. | 1914
The plaintiff and her husband were, at the time of the injury for which she brought this action, pasengers ón a street car line operated by the defendant company. They occupied the same seat, she that part next to the aisle. To facilitate the ejection of the husband, who, it said, was intoxicated and disorderly, the conductor removed or endeavored to remove plaintiff to another seat in the car. Whether he thereby inflicted any injury, or whether his treatment of plaintiff was unnecessarily forcible and violent, are questions as to which the evidence is in irreconciliable conflict. . Her intimate
While defendant relies for reversal of the judgment against it, on several assignments of error, those challenging rulings on instructions require most consideration. It contends plaintiff’s instructions 1 to 9 inclusive were erroneous. By number 1 the the jury were told, “as a matter of law”, without any direction how to apply it, “that it is the duty of a railway company to use the highest degree of care and caution for the safety and security of passengers, while being transported”. That, of course, is, as the instruction says, “a matter of law” binding on all passenger carriers. But it is a mere abstract legal proposition, which the jury, without any aid or direction, was to interpret and apply. Such instructions afford the jury an opportunity to draw erroneous conclusions, and to misapply the propositions announced to the facts of the case on trial. Repeatedly this court has criticized instructions of this character. Our reports are full of such criticisms. We cite the following only: Fisher v. Railway Co., 39 W. Va. 373; Webb v. Packet Co., 43 W. Va. 800; Parker v. Association, 55 W. Va. 134; Oil Co. v. Bartlett, 62 W. Va. 700; Squilache v. Coal & Coke Co., 64 W. Va. 337.
But, while defendant was required to use' a high degree of care for plaintiff’s safety while in its custody as a passenger, an equally imperative duty devolved on it to preserve order and decorum on the ear. For this purpose the statute, §31, ch. 145, Code 1913, has conferred upon the officers of common carriers “all the powers of conservators of the peace, and who as such may eject — and for that purpose employ all the force reasonably necessary — all persons, whether passengers or not, who are guilty of riotous or disorderly conduct; and not only those thus offending, but also those who unlawfully intervene to prevent the performance of this statutory duty. So that, if, as the testimony tended to show, plaintiff’s husband was intoxicated and disorderly, the conductor had ample authority to' remove him, and to this end to cause plaintiff to change her position in the car, provided only that he exercised
Again, the jury was told, by plaintiff’s instruction number 2, that it was the duty of the company to employ competent and prudent servants, and, so far as possible, to protect passengers on its ears from unlawful assaults, not only by other passengers but by its servants. While this instruction is also amenable to the same criticism as the first, being merely abstract, there was neither pleading nor proof warranting it. 'The declaration contained no explicit charge of duty devolving on defendant in the employment of its agents or servants, nor the breach of such duty; and the record is void of any direct evidence of their incompetency. The only averments urged by plaintiff as sufficient to sustain the instruction is the charge in both counts that defendant’s duty required it “to use due and proper care and skill in and about carrying the plaintiff”, and its failure to use such care and skill, with the further averment that the conductor “without any just cause or excuse violently and forcibly grasped the said plaintiff * * and threw her with great force against a seat on the opposite side of the car”, whereby “she was greatly bruised, wounded and injured”. These aver-ments do not raise an issue as to the conductor’s competency, nor give notice of a challenge of his qualification as defendant’s representative; and, if they did raise such issue and impart such notice, there is no proof of any lack of competency on his part, unless we are to infer it from the manner in which he exercised his official functions — an inference not justified by any competent authority. Plaintiff can recover only upon proof showing a breach of the master’s, duty in the employment of competent servants. Straw Board Co. v.
Plaintiff’s instructions 3 and 4 told the jury that if they believed from the evidence the conductor, while in the discharge of his duties, “without cause, excuse or provocation, did strike, assault, beat or mistreat the plaintiff” while a passenger, by reason whereof she was injured, they should return a verdict in her favor. These instructions contained terms and phrases the tendency of which evidently was to excite an undue prejudice against the conductor and his employer. For, while some of the witnesses called by plaintiff testified that the conductor forcibly “grasped” and violently threw her across the aisle, not even the most partisan of them appeared willingly to say the conductor “did strike or beat” her. The use of these terms in consecutive instructions, under the circumstances of this case, may have unduly inflamed the minds of the jury; and, besides, such use was not, as noted, authorized by the testimony. Instructions should not give undue emphasis to particular facts of any case. These instructions likely had that effect.
No serious objection is urged against plaintiff’s instruction number 5; and we perceive none, except in so far as it relates to plaintiff’s recovery “for the loss she has incurred of future separate earnings or business”, on which the proof may be more conclusive on the new trial which we must award by reason of other- instructions discussed.
To say to- the jury, as did plaintiff’s sixth instruction, that if they found from the evidence plaintiff, without fault on her part, was seized by the conductor and forcibly thrown against the end of the seat and injured, and that his act
But we do not concur in the view, urged by defendant, that exemplary damages may not in any event be awarded plaintiff should the conduct of its officer appear to have been malicious, wanton, willful or reckless. He was its represent
Yiewed in the light of the testimony, we perceive no error in plaintiff’s instructions 7 and 8; nor does defendant point out any objection thereto, except that part of 7 relating to permanent injuries, of which it claims there is want of proof. But we think the proof sufficiently warranted the giving of the instruction. N'or do we perceive in what respect defendant was prejudiced by the court’s modification of defendant’s instruction 2, which, as requested, omitted to include all the evidence introduced in determining whether the “evidence in plaintiff’s favor outweighs or overbears in some degree the weight of the evidence in favor of defendant”, in which respect the instruction was rightly amended. But we think that part of instruction 4 (as amended) which makes the right of ejection for disorderly conduct to depend solely on the safety of other passengers or interference “with their reasonable comfort or convenience”, is an unwarranted limitation of the power of removal. A passenger’s conduct may warrant his removal, though neither the personal safety nor the reasonable convenience or comfort of other passengers be disturbed; and his conduct may not warrant his ejection though it may grievously annoy the supersensitive. If this
Defendant’s instruction 8, without the added amendment, did not correctly propound the law upon the question of defendant’s liability for the acts of its agents performed within the scope of their employment. Its instruction 11 was properly amended; and instruction 13 was, for reasons stated as to number 8, erroneous, both before and after amendment. The statute authorizes ejection of a person, whether a passenger or not, who “behaves in a riotous or disorderly manner”.
The only substantial objection to the interrogatories propounded to Goldie Palmer on rebuttal, and introduced by the statement that Mr. Mills (the conductor) “has-testified in this case that Mrs. Wilhelm placed her hand over her husband’s mouth and told him to keep quiet”, is the request to “state whether or not that is true or false”. The witness is thus invited to say whether Mills testified to a falsehood or to the truth, a direct answer to which she skillfully evaded, as any other reasonable witness would do, and by her answer said: “I never saw her put her hand over his mouth”. The other questions of like character were propounded to her, to none of which did she say he testified falsely. Apart from the form of the interrogatories, we see no objection to the testimony, nor to the time of its introduction; and the'cautious answers thereto did not prejudice defendant.
But, in view of the modification of defendant’s instruction upon the conductor’s right of ejection for disorderly behavior, it is difficult to understand the reason for the court’s rejection of the testimony offered by defendant to show complaint by a passenger based on Wilhelm’s disorderly behavior. For if the exercise of such right rests only upon
As for the errors noted a new trial must be awarded, nothing need be said upon the asignment of error based on newly-discovered evidence.
The judgment will be reversed, the verdict set aside, and a new trial awarded to defendant.
Reversed and Remanded.