Krantz v. Rio Grande Western Railway Co.

1. Railway Corporations. — Liability fob Wilful and Malicious Acts of Servants. — When Relation as Passenger Ceases. — When a person leaves a railroad station to which he came as a passenger to engage in his own business, his relation as passenger ceases and the company is not liable for a wilful and malicious assault on him on the company’s grounds outside of its station committed afterwards by its agents, since such acts are not within the general scope of their authority or employment, provided the company did not suffer or permit • them. 2. Id. — Id.—Duty of Company to Protect Persons Waiting in its Station Houses from Assault. — In an action against a railroad company, it appeared that plaintiff, a traveling merchant, came as a passenger to one of defendant’s stations situated in a sparsely settled country; that the only means of transportation to and from such station was by rail; that plaintiff after being assaulted outside of the station by the section foreman started to walk along the track to the next station when he was overtaken and robbed by other persons; whereupon, he then returned to the former station where he was again assaulted by such foreman and by the men who assaulted him on the track; that the station agent, to whose orders such foreman was subject was present but made no earnest effort to protect him. Held, that the company was liable for the last assault, since the company itself was present in the person of the ticket agent in charge, its vice-principal, and the injuries inflicted in the presence of the vice-principal, who failed to exercise his authority for the protection of the plaintiff, were inflicted by the company itself. 3. Chame to Jury. — Misdirection as to the Law. — Submission of Cause by Court to Jury on Wrong Theory. — Verdict. —New Trial. — When Error to Grant. — Where the court misdirects the jury as to the law and submits the cause to them upon a wrong theory, which they disregard and find a verdict supported by the evidence, the order of the court setting aside the verdict and granting a new trial will be reversed, since the order was granted- because in the opinion of the court the verdict was contrary to law and not because of any conflict in the evidence.

Appeal from the District Court of the Third Judicial District. Hon. S. A. Merritt, Judge. Action by Joseph Krantz against the Eio Grande Western Eaihvay Company for damages for a wilful and malicious assault committed by defendant’s servants. The court withdrew the issues from the jury upon the first count and directed a verdict for defendant. From a judgment entered upon the verdict and from the order overruling plaintiff’s motion for a new trial, he appeals. Affirmed. There was a verdict for plaintiff on the second count and from the order setting it aside and granting a new trial, plaintiff appeals. FIRST APPEAL. The court erred in withdrawing the issues from the jury and directing a verdict for defendant. We affirm the following propositions: First. Appellant was a passenger when assaulted. Second. In any event, the question was for the jury. The case was tried by the court upon an erroneous and utterly inadmissible theory as to when the relation of passenger begins and when it ends. This ruling was that in order to institute the relation the person must either pay fare or tender it, and his fare or offer, must be accepted by the carrier. This appears by his charge. It is not ne'cessary that the contract for passage should he actually made or the fare actually paid, nor that a person should be on the train to create the relation. If he is on the premises of the carrier, or in a vehicle under its control going to the station, with the bona fide intent to become a passenger, the carrier owes to him a duty as such. 2 Woods' Ey. Law, pp. 1037 et seq. 1045-1046; Thompson on Carriers (1 ed.), p. 43; Hutchinson on Carriers, 557a, 565; Pierce on Ewys. 275; Hamilton v. B. B. Go., 21 Am. & E. E. E. Cases, 338; Gordon v. B. B. Go., 40 Barb. 546; Cleveland v. Steamboat Co., 68 N. Y. 306; Hunt v. B. B. Co., 40 Miss. 391; Allender v. B. B. Co., 37 la. 270; Harris v. Stevens, 31 Vt. 79; S. C. 73 Am. Dec. 340; Grimes v. B. B. Co., 36 Fed. Eep. 72; Brien v. Bennett, 8 Car. & P. 724; Buffett v. Troy & Boston Co., 40 N. Y. 171; Norfolk By. Co. v. Galigher, 16 S. E. 935; Langman v. Great Western Co., 115 E. C. Law, 185. The same principle must apply to the ending of the journey. “A passenger arriving at the station continues to be a passenger for a reasonable time until he has left the premises. So, too, a person bona fide at the station for the purpose of taking passage upon a train is a passenger, although he has not in fact purchased a ticket.” 2 Wood’s Ey. Law, 1163; 1Waller v. M. K. T. By. Co., 59 Mo. App. 411; 2 Eap. & Mack’s Dig. Ew. Laws, 310, 311 and cases; Shelly v. Billings, 8 Bush. 147; Win-nigais Admrs. v. By. Co., 85 Ky. 552. The series of acts, from the getting off the train until appellant was driven away, were so connected as to make. them practically one transaction, and it should have been left to the jury to say whether a reasonable time had elapsed for the appellant to lose his rights as a passenger purely, and whether the beatings and .driving away were acquiesced or participated in directly or indirectly by the respondent, through its vice-principal. The respondent is liable to a passenger — or one intending in good faith to become such — absolutely for the acts of its own servants, and relatively for those of strangers. Appellant told the agent he wished to take a train. 2 Wood’s Ry. Law, 119; Thompson Carriers, p. 363-4; Craker v. Ry. Co., 36 Wis. 657-673; Wright v. Ry. Co. (Colo.), 35 Pac. 197; Goddard y. G. Trunk Ry. Co., 57 Me. 202; Norfolk Ry. Co. v. Galigher, supra; R. R. Co. v. Darling, 33 N. E. 630; Steiuart v. R. R. Co., 90 N. Y. 590; Hansen v. R. R. Co., 62 Me. 84; Fide v. R. R. Co., 34 A. & E. R. R. Cases, 378 and note, with cases cited on 'p. 381; R. R. Co. v. Jopes, 142 TJ. S. 26-27. The company had delegated its powers over the premises to the station agent, and is held to be present in his person. Com. v. Powers, 7 Mete. 601; 1 Wood Ry. Law, 450. The duty of the agent was plain. He should have led the way in protecting appellant. At least he should have made an earnest endeavor to do so, bringing all of the authority with which he was clothed into action. Penn. R. R. Co. v. Hinds, 53 Pa. St. 503; R. R. Co. v. Burke, 53 Miss. 227. SECOND APPEAL. Whether in strictness plaintiff was a passenger or not is unimportant. He entered the premises for the purpose of taking the train, as his own evidence reinforced by attendant circumstrnces clearly establishes and the jury so found. Respondent insists that the injuries were inflicted by the persons not acting as agents of the company, nor within the scope of any duty owing by them to the company, nor acting under its authority, or by its request, but acting wholly on a private grudge and quarrel. But the theory of the objection is in violation of principle, and is not countenanced by the law. The law binds passenger carriers to absolute protection of passengers against the wilful and malicious acts of their own servants, and also of strangers. The distinction seems to be this: When the liability of the master depends on the sole fact that the person inflicting the iniury was in some business his servant, if on inquiry it is found that the act was not done while in the transaction of the master’s business, then the act is not that of the master but of the servant. But this rule cannot be applied when the master, either by contract or by reason of imperative duty imposed by law or public policy, is under obligations to protect the injured person from the servant’s wrongful act as well as his own. In such case the master is liable — at least, to make actual compensation — as though the act was his own personal act. The distinction is clearly expressed in Dillingham v. Russell, 73 Tex. 47; S. 0. 15 Am. St. Rep. 757; Thompson Carriers, pp. -368-9. And the supreme court approves the distinction, saying: “But owing to the peculiar circumstances which surround the carrying of passengers * * * a more stringent rule of liability has been cast upon the employer; and he has been held liable, although the assault was wanton and wilful and outside the scope of the employment.” R. R. Co. v. Jopes, 142 TJ. S. 27; Goddard v. G. Trunk, 57 Me. 202; Hades v. Ry. Co., 43 N. Y. App. 545; Smith v. Ry. Co., 18 N. Y. Supp. 759. As to the connection of the tramps with the trespass, we again point to the fact that the servant of the respondent was the moving spirit, and that the entire wrong was perpetrated in the very presence and under the eye of the company, standing there in the person of its vice-principal. Certain it is that the new trial was not granted upon these assignments, and we may dismiss their consideration with the pertinent inquiry, “If the test of the master’s liability is in the question of the servant’s act being within the scope of his employment, could a passenger carrier ever be held for its servant's wilful assault on a passenger?" Its servants are never employed to beat or kill passengers. The position of counsel then is, that having permitted &e servant of the company acting with strangers, to force appellant into a situation whereby he lost his money, upon his return to renew his claim for protection and transportation, respondent owed him no duty. We fail to see why the rule as to' gratuitous passengers would not apply in all its force to this case, even upon the assumption that appellant had no money. Hutchinson on Carriers, § 566; R. R. Co. v. Derby, 14 How. 468; Rogers v. Kennebec Co. (Me.), 29 Atl. 1070-1. FIRST APPEAL. The duty of railway companies to persons who come to their stations as passengers is two-fold: (a) As the owners of fixed property to guard persons thereon at their invitation from pitfalls and concealed dangers. This duty is not peculiar to common carriers. (5) To care for the safety of persons who as passengers have surrendered the control of their actions to the carrier. 2 Wood on Railways, § 298 (-2d ed.) The relation of carrier and passenger ends when the journey contracted for is completed and the passenger has either left the railway station premises or been afforded a sufficient time to so leave. Patterson on Rwy. Acc'nt Law, § 221; Imhoff v. C. & M. R. R., 20 Wis. 344. But if instead of leaving or attempting to leave the claimed passengér resumes control of his own person, stays on the premises of the railway for his own purposes; goes to a portion of the premises clearly not intended for him, and that not in an effort to leave the premises, but with the expressed intent to there vend his wares, he has severed the relation that bound them and ceased to be a passenger. The duty to protect is correlative to the power to control. No authority has been cited, nbne we. believe, can be found, that would justify the contention that plaintiff was a passenger at the time of the assault complained of. Many authorities oppose it. Uein-lein v. Boston & Pr'ov. By. Oo., 147 Mass. 136-9; June v. By. Co., 153 Mass. 79; Buckley v. Old Colony B. B., 161 Mass. 27; Allerton v. By. Co., 34 A. & E. Ey. Cases, 563. By. Co. v. Krouse, 30 Ohio St. 222; Platt v. By. Co., 2 Hun, 124; Central By. Co. v. Peacock, 9 Am. St. E. 425, 69 Md. 257. If the plaintiff was not then a passenger it needs no argument to support the proposition that the defendant is not liable for the act of the section foreman. Cooley on Torts, pp. 625-627; Patterson Ey. Acc’dnt Law, 117 et. seq. SECOND APPEAL. ' The second appeal presents a different question in one of its aspects. The defendant moved for a .new trial on the ground (a) That the evidence was insufficient to justify the verdict, (h) Errors at law occurring at the trial and excepted to by defendant. The order of the court granting a new trial recites as a reason therefor that “It appearing to the court that the said judgment and verdict are not fully supported by the law and evidence,” the motion is sustained. Counsels for appellant recite in their brief a portion of the plaintiff's testimony as the evidence of the case, but even they cannot well claim that the great, the overwhelming weight of the evidence was not against the plaintiff's statement. All the plaintiff can claim is a conflict of evidence. The plaintiff is then met by the rule that a motion for a new trial on the first ground is addressed to the discretion of the trial court. That court seeing the_ witnesses, observing their demeanor, may grant a new trial even if the evidence be conflicting •and the supreme court for that reason would not have disturbed the verdict. In Hayne on New Trial and Appeal, § 288, it is said that “Where there is a substantial conflict in the evidence the supreme court will not disturb the decision of the court below. This rule has been announced more frequently than any other rule of practice. It applies equally where the court below granted as where it denied the motion for a new trial." Downey v. Heilman, 58 Cal. 62; Bronner v.^ Wetzlar, 55 Cal. 420; Brutz v. Jessup, 54 Cal. 118; Oreen v. L. 8. & P. F. -Go., 46 Cal. 408; Hawkins v. Bichert, 28 Cal. 539; Edwards t. Carson Water Go., 21 Nev. 469-492; Neioton v. Brown, 2 Utah, 126; Davis v. By. Co., 3 Utah, 218-224; White w. By. Go., 8 Utah, 56. was THE PLAINTIER A PASSENGER? (a) If-the plaintiff is to be believed, he only applied to •defendant to become a passenger when he was in imminent danger of personal violence, and when, if defendant accepted, the defendant would at once have assumed a great responsibility, entirely out of the ordinary. Defendant did not accept. Did the plaintiff, notwithstanding, become a passenger and cast this great responsibility on defendant? It is well settled that an intending .passenger cannot insist •on being accepted if he presents himself to the carrier under such circumstances of danger to the passenger as to throw unusual obligations on the carrier. Pearson v. Duane, 4 Wall. 605-615; Webster v. By. Go., 58 A. & E. Ry. Cas. 1; Balto. Traction Go. v. St., 58 A. & E. Ry. Cas. 200-'205. (b) The evidence shows satisfactorily that the plaintiff had no money. He then could not have in good faith intended to have become a passenger. If he had announced such a wish, and it had been accepted by the •company on the faith of his paying, it would have been a fraud on the company. The relation of passenger and carrier is distinctly a contract relation. There must be a proposal and acceptance. Patterson’s Ey. Ac. Law, § 214, 218; Gardner v. Ry. Go., 18 A. & B. Ey. Cas. 170 (51 Conn. 143); Gilmer v. Higley, 110 TJ. S. 47-49; Atchinson Ry. Go. y. Flinn, 24 Kan. 629; Hutchinson on Carriers, § 554 (2d ed.). As stated in Johnson y. Ry. Go., 8 Am. & Eng. Ey. Cas. 206-209 (58 la. 348): “If an agent, conductor, or other employe, should assault a loafer in awaiting room, in a personal quarrel haying no relation to-his employment, the company would not be liable in damages.” The rule of absolute liability for misconduct of the carrier’s servants, in respect to a passenger even, is too broadly stated in appellant’s brief. That absolute duty only extends to such servants as are charged by the carrier with executing its contract with the passenger and such other servants as may be acting within the scope of their employment. Steamboat Go. v. Brockett, 121 U. S. 637— 645; Mulligan v. Ry. Go., 129 N. Y. 506; Stewart v. Ry. Go., 90 N. Y. 588.