Bosworth v. Walker

• Citation: 83 F. 58
• Decision Date: 08 November 1897
• Docket Number: 430.
• Parties: BOSWORTH v. WALKER.
• Court: U.S. Court of Appeals — Seventh Circuit

83 F. 58

BOSWORTH v. WALKER.

No. 430.

United States Court of Appeals, Seventh Circuit.

November 8, 1897

The defendant in error, Charles W. Walker, recovered judgment in an action of trespass on the case for personal injury against C. H. Bosworth, as receiver of the Chicago, Peoria & St Louis Railway Company, plaintiff in error. The declaration contains four counts, the first two of which charge that while Walker was a passenger upon the train of plaintiff in error, going from Edwardsville to Glen Carbon, conducting himself in a peaceable and proper manner, he was compelled and forced, by the threats and violence of the conductor in charge, to leap from the train when it was in rapid motion whereby he fell, and suffered permanent injury to his left foot. The third and fourth counts, alleging that the plaintiff was on the train conducting himself in a peaceable and orderly way, but not stating whether or not he was a passenger, charge that the servants of the defendant willfully and recklessly ejected him, and by threats and intimidations forced him to leap from the train while running at a high rate of speed, whereby he fell, and was thrown under the cars, and his left foot so crushed that amputation became necessary. The case having been removed from the circuit court of Madison county, Ill., to the court below and the plea of not guilty interposed, a trial was had by jury, which assessed the plaintiff's damages at $3,000 for which judgment was given as stated.

Of the errors assigned we are asked to consider only those that relate to the special instructions which the court refused give. The facts, in outline, are that on November 6, 1895 the defendant in error, with two companions, boarded a local freight train of the plaintiff in error at Edwardsville, for the purpose of going to Glen Carbon. The train being already in motion, Walker and his companions, instead of entering the caboose designed for passengers, climbed upon a freight car, where the conductor afterwards found them. Walker's testimony, corroborated in important particulars by the testimony of his companions, in substance was that the conductor approached with a club or brake stick in his hand, and demanded fares; that, labor union cards having been offered and refused, cash was tendered, but the conductor, refusing to accept it, said 'You fellows will have to get off here,' and made a motion as if to strike Walker with his club, whereupon the latter protested that the train was going too fast, to which the conductor replied 'No, you got on this train while it was going; you get off while it is going,' and, approaching nearer with lifted club, compelled him, still protesting, to climb down the ladder, in doing which he lost his hold, fell, and was hurt. The story, in all its essential features, the conductor denied, and testified that he had no club, and made no threats, and that upon his refusal to accept the proffered cards, and informing the men that the fare was fifteen cents for each, they said they had no money, to which he responded, 'You will have to get off;' that thereupon the...