Pacelli v. Peoples Railway Co.

Boyce, J., charging the jury: Gentlemen of the jury:—This is an action brought by Salvatore Pacelli against the People’s Railway Company, to recover damages for personal injuries alleged to have been caused by the defendant company. The plaintiff’s declaration contains two counts, and the negligence averred therein and relied upon is by the first count that the defendant company negligently and carelessly suffered and permitted the motorman on one of its cars, on the twelfth day of October, A. D. 1913, to use unnecessary force and violence in pushing or throwing the plaintiff from the car to the street or [348] ground, at or near the intersection of West Sixth Street with Scott Street in this city. By the second count it is charged that the defendant company through and by its motorman willfully and maliciously, negligently and carelessly knocked, hurled, pushed and threw off to the ground the plaintiff from the front end of its car while in motion. The defendant company denies that it was guilty of any of the acts complained of against it, and insists that the plaintiff suffered whatever injuries he may have sustained by reason of his own acts of negligence and misconduct.. The liability or nonliability of a carrier of passengers under facts similar to those now before you, presents a question of law of first impression in this state. The decisions in this country are inharmonious, and i,t is a matter of regret to the court that we do not have time for a full and careful consideration of the question. We are constrained upon our view of the law applicable to the facts of this case, sustained, we think by the weight of authority in this country, to deny the application of the defendant for binding instructions. This case is important to carriers of passengers, to their employees and to the traveling public, and demands your serious consideration. We say to you, gentlemen, that with the facts of this case, the court have nothing to do.. They are for your determination alone. You are the sole judges of the weight and effect of the testimony. You have the evidence before you, and it is now for your careful consideration and determination, applying thereto the law as we shall declare it to you. This action is based upon negligence which has often- been defined by this court to be the want of ordinary care, that is, the want of such care as a reasonably prudent and careful man would use under similar circumstances. It is for you to determine from the evidence whether there was any negligence that caused the accident complained of, and if there was, whether it was the negligence of the defendant or of the plaintiff. [349] To enable the plaintiff to recover at all, he must show to your satisfaction by a preponderance of the evidence that the negligence which caused the accident, if any there was, was the fault of the defendant company. The burden of proving such negligence is upon the plaintiff, and the defendant can be held liable only for such negligence as constitutes the proximate or immediate cause of the injury. It is the duty of a street railway company in the conduct and management of its business to use all reasonable means, care, vigilance and circumspection to prevent injury to its passengers. This duty is imposed by law as a public duty as well as by contract to carry safely as far as care and diligence will reasonably admit. [1] The duty of a street railway company towards its passengers is not only to carry them safely; but to protect them from any improper and unnecessary violence at the hands of its servants. Street railway companies are responsible to their passengers for the unlawful acts of their servants employed in running their cars, when such wrongful acts are committed in connection with their employment and spring from or grow immediately out of such employment. 6 Cyc. 600. [2] It is a familiar rule of law that abusive, indecent or opprobrious language or epithets alone never justify the commission of an assault. Such language or epithets employed by a passenger on a street railway car towards the motorman of the car will not alone warrant an assault by the motorman upon the passenger, nor will the responsibility for any injuries which the passenger may receive in consequence of an assault be limited to the motorman alone, but the company, whose servant the motorman is, is liable also. [3] A passenger on a trolley car who uses obscene, profane or vulgar language, or is otherwise disorderly, has no right to remain on the car whether he has paid his fare or not, and the servants in charge of the car may in a reasonable and lawful manner, eject him, using such force as is reasonably necessary to accomplish such purpose. [350] If the plaintiff did not receive the injuries complained of by any act of negligence of his own entering into and contributing thereto, but was injured in the manner complained of by the negligence and wrongful conduct of the motorman of the defendant company, suffered or done in the course of his employment, the defendant company is responsible for whatever injuries were sustained. If you find that the motorman while in the discharge of his duties as such, without legal excuse or provocation, did push, throw, knock or hurl the plaintiff from his car, by reason of which the plaintiff sustained injuries to his person, your verdict should be for the plaintiff. If you should find for the plaintiff your verdict should be for such a sum as will reasonably compensate him for the injuries sustained, including his pain and suffering in the past as well as for the future, his loss of time and wages and money expended for medical treatment; and also for.any permanent injuries which may impair his earning ability hereafter. [4] We have been requested by the plaintiff to instruct you that this is a case in which you may award vindictive or punitive damages. We say to you that such damages are properly awarded only where the injury to the plaintiff is wanton or malicious. Under such'circumstances exemplary damages are regarded by the law as a punishment imposed upon the defendant, or perhaps more properly as a special compensation to the plaintiff for his wounded feelings. There is no hard and fast rule determining when such damages should be awarded, but each case is decided on its special merit. If you find for the plaintiff you may in assessing his damages consider whether his conduct was such as to reasonably and naturally arouse the passions of the motorman and have the effect to provoke the acts complained of; and whether they were malicious in view of the provocation, if any, under which the motorman acted. All the prayers of counsel not embraced in .this charge are disregarded. Verdict for plaintiff.