Toledo, St. L. & W. R. Co. v. Gordon

SEAMAN, Circuit Judge (after stating the facts). The primary contention, that the plaintiff in error was entitled to a peremptory instruction in its favor, is untenable, as we believe, in any view of the issues of fact under the rule which governs the expulsion of any person from a railroad train when no contract duty exists. In the absence of the relation of carrier and passenger, it is well settled that the only duty then owing one who is on the train without right is “to abstain from wanton or reckless injury to him” (Purple v. Union Pacific R. Co., 51 C. C. A. 564, 114 Fed. 123, 129, 57 L. R. A. 700), when rightfully expelled, but that duty is imperative. Whether it is justly observed in any case depends upon all the circumstances involved—the conditions under which removal was imposed, and not alone the extent of violence in its enforcement. When an issue of fact fairly arises under the testimony, whether the conduct on the part of the railroad company was wanton and reckless in expelling a trespasser from the car, willfully exposing him to imminent danger and [97] harm, the solution is for the jury under proper instructions and not for the court. It is true that another issue may arise in such case, in reference to the conduct of the injured party, whether, without physical compulsion, he may not have acted voluntarily, and assumed the risk of jumping from the car, in the face of recognized danger (vide Bosworth v. Walker, 27 C. C. A. 402, 83 Fed. 58), which is equally a question of fact for the jury, if the testimony is not conclusive one way or the other. Without needless comment on the testimony in the present record, we deem it sufficient to remark that neither version of the transaction authorized a directed verdict in favor of the plaintiff in error. The instructions under which the case was submitted to the jury, upon the issue of the alleged willful and wanton conduct on the part of the conductor, clearly defined that issue, and are not open to complaint on the part of the plaintiff in error. A single exception, which is preserved to that portion of the charge, in reference to the authority of the conductor, is plainly without merit. Upon the further issue, the instructions do not specifically define what may constitute a voluntary act of the injured party and assumption of risk, but the jury were instructed, in plain and repeated terms, that the burden of proof was upon the plaintiff (below) to establish all the allegations; and it was specifically stated that he must prove by the preponderance of evidence “that while the train was moving over a dangerous portion of the road, the conductor, knowing that fact, willfully and wantonly ejected the plaintiff from the train, the plaintiff not knowing the danger of the location,” to authorize a verdict in his favor; also that the proof must establish “that the conductor here knew of the trestle and the plaintiff did not know of the dangerous location of the train, and the conductor compelled the plaintiff to jump off by commands or threats or demonstrations of violence, and that those commands or threats or demonstrations .of violence were such that a reasonably prudent man in a like situation would have yielded to them and would have jumped off.” We are satisfied that no reversible error was committed in this branch of the instructions, and that the jury were well advised and cautioned for their consideration of the evidence, under these issues, or in any view of the burden of proof, without prejudice to the plaintiff in error. In reference to the several instructions requested on behalf of the plaintiff in error and denied by the court, aside from one relating to exemplary damages, to be considered separately, discussion in detail is deemed unnecessary. Those pressed for consideration, which are not plainly covered by the general instructions, are numbered 3, 4, 5, 7, 10, and 15. Of the first five, it is sufficient to remark that each relates to the act of the plaintiff in error in jumping from the car, and instructs, in effect, that he cannot recover if his act was voluntary. No. 3 instructs against recovery, if warned by the conductor not to get off while on the trestle, and No. 4 that, even if told to get off, he would not be justified in doing so on the trestle, but had the right to disobey such order, when compliance exposed him to obvious danger. No. 5 instructs that, if he knew, or' exercising reasonable [98] care could have known of the peril, he was not bound to obey the command; and, unless he thus left the train, justified in fearing and in actual fear of a vicious assault, he could not recover for the injury. No. 7 defined obedience to such command, when the danger of obeying is perceived and obvious, as “essentially a voluntary act” for the consequences of which there can be no recovery. No. 10 instructs that he could not recover, though ordered to leave, if “it was optional with him whether to get off or not,” and he deliberately made the attempt. Upon these requests a general observation sufficiently supports the ruling of the trial court. In so far as either assumes to instruct that Gordon was not entitled to recover, if he was warned or was chargeable with knowledge of the danger incurred, such instruction was fully covered by the general charge. The further requests, defining, in the language of authorities cited, voluntary action which would defeat recovery, if given without modification adapted to the evidence, would tend to mislead the jury, and their refusal was not erroneous. With the jury expressly instructed that the defendant in error must fail of recovery, unless the preponderance of evidence established, not only that he was compelled by the conductor to jump from the moving car, when the night was dark and stormy, but that the conductor knew they were on the dangerous trestle and the defendant in error did not know “the danger of the location,” surely the utmost burden authorized under the rules was thus discharged. Whether the command to leave the train was accompanied with physical force does not impress us to be essential under the issue of fact thus framed and found by the verdict, and we are of opinion that error is not well assigned for denial of such requests; nor' for denial of request No. 15, which was sufficiently included in the general charge. The remaining question for review arises upon request No. 21, for an instruction that exemplary damages cannot be recovered, and the instruction which was given instead, that the jury were entitled, in their discretion, to award “punitive damages.” Under the decision in Lake Shore, etc., Ry. Co. v. Prentice, 147 U. S. 101, 107, 13 Sup. Ct. 261, 37 L. Ed. 97, the instruction so given was erroneous and presumptively harmful. In this court the rule thus settled is exemplified and followed in Pittsburgh, C., C. & St. L. Ry. Co. v. Russ, 6 C. C. A. 597, 57 Fed. 822, 826. Also, see, notations in 12 Notes U. S. Rep. 297. As remarked in the leading authority first mentioned, the decisions contra in various state courts are disapproved, and this rule is adopted: The principal must respond in full compensatory damages for injury wantonly caused by an agent in the line of his employment, but not for exemplary damages, unless the wrongful act in question was authorized or ratified by the principal. Comment on the line of cases thus disapproved is unnecessary, and it is not open to question that the allowance of exemplary damages was reversible error. .It would, indeed, be a harsh rule—harsh in its effect on all employés—that would hold a railroad company to have ratified the employé’s act merely because before trial the employé was not discharged. Such rule would put their continued employment in j eop [99] ardy every time an accident occurred, not because the employe was shown to have been guilty of wanton conduct, but because the railway company stood in danger that wantonness might be established. In reference to the case of Bass v. Chicago & Northwestern Ry. Co., 42 Wis. 654, 669, 672, 24 Am. Rep. 437, cited as supporting the instruction, within the doctrine of ratification, it may well be remarked that no such issue of fact was submitted to the jury by this instruction, as in that case; and were it assumed, without so intimating, that the peculiar circumstances which there appeared, including two prior trials, were sufficient evidence of ratification to uphold the verdict, nevertheless the evidence in the present record is plainly insufficient to establish, as a conclusion of law, that the alleged wanton acts of the conductor were ratified by the plaintiff in error. The judgment is reversed, for error in such instruction, and the cause remanded for a new trial.