Atchison, T. & SF Ry. Co. v. Condos

• Decision Date: 14 January 1929
• Docket Number: No. 7946.,7946.
• Citation: 30 F.2d 669
• Parties: ATCHISON, T. & S. F. RY. CO. v. CONDOS.
• Court: U.S. Court of Appeals — Eighth Circuit

30 F.2d 669 (1929)

ATCHISON, T. & S. F. RY. CO. v. CONDOS.

No. 7946.

Circuit Court of Appeals, Eighth Circuit.

January 14, 1929.

E. E. McInnis, of Chicago, Ill., W. W. Grant, Jr., Erl H. Ellis, Morrison Shafroth, and Henry W. Toll, all of Denver, Colo., for plaintiff in error.

John J. Morrissey, William H. Scofield, and Harold G. King, all of Denver, Colo., for defendant in error.

Before BOOTH and COTTERAL, Circuit Judges, and REEVES, District Judge.

REEVES, District Judge.

Plaintiff in error was defendant in the trial court, and defendant in error was plaintiff. These designations will be used in this opinion.

Claiming that she had been wrongfully and with undue force ejected from one of defendant's passenger trains, plaintiff sued for damages, and was awarded a verdict in the sum of $1,500. The trial judge required a remittitur of $300, and entered judgment for $1,200. From this judgment defendant has brought error.

On the 23d of June, 1927, defendant was engaged in carrying passengers for hire over its line of railway between the cities of Pueblo, La Junta, Caddoa, and Lamar, in the state of Colorado. In traveling from Reno, Nev., on said date, plaintiff became a passenger on one of defendant's trains at Pueblo, bound for Caddoa as her destination. The train on which she took passage at Pueblo was not scheduled to stop at Caddoa, although she had bought a ticket for that point.

The evidence was in sharp conflict as to whether plaintiff was advised that the train would not stop at Caddoa before she went aboard. Her testimony was that she was not so advised. Witnesses for the railroad company testified to the contrary. Moreover, they said she was told that she could not be discharged from the train at Caddoa. It was in evidence that the conductor suggested that she either leave the train at a regular stopping place before arriving at Caddoa, or at Lamar, some distance beyond Caddoa. Whatever the facts in this regard, plaintiff remained on the train until its arrival at Lamar.

A controversy arose between plaintiff and the employees of defendant as to where she should get off. When the train arrived at Lamar, a police officer came on the train to aid the conductor and other employees in removing plaintiff from the train. Plaintiff had apparently refused to get off. It was undisputed that plaintiff was forcibly ejected. She claims she was dropped by the employees upon the steps of the coach in such a way as to cause her to fall and that as a result she suffered injuries.

The defendant claims that plaintiff's own conduct in resisting her removal and ejectment from the train was responsible for her fall and resultant injuries. The defendant claims that plaintiff fell when she attempted to kick one of defendant's employees with both feet, while being escorted from the train by the conductor and police officer.

Plaintiff says that she was struck in the face by an employee, that she was dropped on the steps of the coach, and that the peace officer who became an agent of the defendant stepped on one of her limbs, injuring it. There is no disagreement as to what the evidence was on the respective sides. Plaintiff alone, on her side, testified to what occurred at the time of her injury. Many witnesses testified for the defendant that plaintiff's fall was occasioned by her own conduct. This question was submitted to the jury on instructions satisfactory to both the parties, and the jury, as stated, awarded a verdict in favor of plaintiff.

The only complaint made upon this record is that the evidence on behalf of the plaintiff was insufficient to support the verdict, and that the trial judge should have directed a verdict for the defendant.

1. There was a sharp conflict between the testimony of plaintiff and defendant as to the cause of plaintiff's falling. If plaintiff's statements were true, then unquestionably defendant's employees had used undue force, and she was entitled to recover. If the evidence on the part of the defendant was true, then plaintiff's own fault occasioned her injury, and she was not entitled to recover. Upon this sharp and well-defined conflict in the evidence the jury believed the plaintiff, although a large number of witnesses flatly contradicted her, and supported the theory of the defendant.

The rule...