29 S.E. 879 | N.C. | 1898
Lead Opinion
The plaintiff in his complaint alleged that while he was a passenger on the defendant’s train he was assaulted by the conductor and another person who was in the employment of the company in the conducting of the train. He also alleged that after the assault he was ejected from the train by the conductor and other of the agents and employees of the company. These allegations were denied in the answer. At the conclusion of the evidence, in which it was disclosed that the assault was made by a brakeman of the company, the conductor having taken no part in it, the court Changed the first issue by substituting the disjunctive “or” for the conjunctive “and” as between the conductor and servants of the company. The first issue as originally framed was in the following language: “Did the defendant, through the conductor and other agents or servants, unlawfully assault and beat the plaintiff?” The defendant made his first exception to the change in the issue. His Honor committed no error in making the change. The framing of the issues is a matter within the sound discretion of the court, and in cases where exceptions are made to the issues the party excepting must show that the exercise of that discretion operated to his injury. Pickett v. Railroad, 117 N.
The defendant asked the court to instruct the jury that, as the uncontradicted testimony of the plaintiff showed that the brakeman struck the plaintiff instantaneously with the applying to the brakeman by the plaintiff of a vile epithet, the brakeman was therefore not acting within the scope of his authority and the defendant would not be held responsible for the brakeman’s act, and that the blow was so sudden that the conductor could not have prevented it and the defendant would not be responsible. His Honor was right in declining to give the instruction. The brakeman was engaged in the service of the company on the occasion and the company was bound in duty to protect the plaintiff, a passenger, against the assault or rude treatment of its employee; the brakeman. Daniel v. Railroad, 117 N. C., 592; 42 Penn. State Rep. 365; 103 Ill., 546; 57 Me., 202. Indeed, where the relation of carrier and passenger exists, the conduct of an employee of the carrier in inflicting violence on the passenger, though the act be outside of the scope of bis authority or even willful and malicious, subjects the carrier to liability in damages just as fully as if the carrier had encouraged the commission of the act. See authorities cited in the
This was not the case of singling out one witness from the others, where the evidence is contradictory, and instructing the jury that, if they believed the one witness, they should make a finding upon his testimony.
The last exception of the defendant was to that part of his Honor’s charge in which he said there was no evidence as to the defendant’s insolvency. The contention of the counsel was that the fact that the summons was issued against the receiver of the company, and the further fact that it was alleged- .in the complaint that the defendant company was in the hands of a receiver furnished some evidence of insolvency. We think the contention was unfounded, for receivers may be appointed for other reasons than insolvency, and there was no proof on the trial as to the causes for the appointment of a receiver. His Honor’s instruction was correct. Affirmed.
Concurrence Opinion
concurring. — I concur in the legal conclusion of the opinion but I do not agree with the proposition announced that, “Indeed, where the relation of carrier and passenger exists, the conduct of an employee of the carrier, in inflicting violence on the passenger, though the act be outside of the scope of his authority or even willful and malicious, subjects the carrier to liability in damages just as fully as if the carrier had encouraged the commission of the act.” That proposition has not yet been adopted by this court, hut was rejected in Daniel v. Railroad, 117 N. C., 592. The facts in this case do not authorize or call for such an expression. Too much dicta leads to confusion, and
Lead Opinion
The plaintiff in his complaint alleged that while he was a passenger on the defendant's train he was assaulted by the conductor and another person who was in the employment of the company in the conducting of the train. He also alleged that after the assault he was ejected from the train by the conductor and other of the agents and employees of the company. These allegations were denied in the answer. At the conclusion of the evidence, in which it was disclosed that the assault was made by a brakeman of the company, the conductor having taken no part in it, the court changed the first issue by substituting the disjunctive "or" for the conjunction "and" as between the conductor and servants of the company. The first issue as originally framed was in the following language: "Did the defendant, through the conductor and other agents or servants, unlawfully assault and beat the plaintiff?" The defendant made his first exception to the change in the issue. His Honor committed no error in making the change. The framing of the issues is a matter within the sound discretion of the court, and in cases where exceptions are made to the issues the party excepting must show that the exercise of that discretion operated to his injury.Pickett v. R. R.,
The defendant asked the court to instruct the jury that, as the uncontradicted testimony of the plaintiff showed that the brakeman struck the plaintiff instantaneously with the applying to the brakeman by the plaintiff of a vile epithet, the brakeman was therefore not acting within the scope of his authority, and the defendant would not be held responsible for the brakeman's act, and that the blow was so sudden that the conductor could not have prevented it, and the defendant would not be responsible. His Honor was right in declining to give the instruction. The brakeman was engaged in the service of the company on the occasion and the company was bound in duty to protect the plaintiff, a passenger, against the assault or rude treatment of its employee, the brakeman.Daniel v. R. R.,
This was not the case of singling out one witness from the others, where the evidence is contradictory, and instructing the jury that, if they believed one witness, they should make a finding upon his testimony.
The last exception of the defendant was to that part of his Honor's charge in which he said there was no evidence as to the defendant's insolvency. The contention of the counsel was that the fact that the summons was issued against the receiver of the company, and the further fact that it was alleged in the complaint that the defendant company was in the hands of a receiver furnished some evidence of insolvency. We think the contention was unfounded, for receivers may be appointed for other reasons than insolvency, and there was no proof on the trial to the causes for the appointment of a receiver. His Honor's instruction was correct.
Affirmed.