Brassell v. Minneapolis, St. P. & S.S.M.R. Co.
| Decision Date | 16 June 1894 |
| Citation | 101 Mich. 5,59 N.W. 426 |
| Parties | BRASSELL v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Schoolcraft county; Joseph H. Steere Judge.
Action by Henry Brassell against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. To a judgment for plaintiff defendant brings error. Reversed.
E. C. Chapin and A. H. Bright, for appellant.
Hurst & Sullivan and J. W. McMahon, for appellee.
Plaintiff claims that he was unlawfully ejected from a passenger car of the defendant's train while it was in motion, and was injured.
1. In his original declaration, plaintiff alleged that: "The said plaintiff, after purchasing the said ticket, and on, to wit, the said 19th day of november, went on the cars of said defendant from Manistique to Hunt's Spur, and afterwards to wit, entered a car of the said defendant, on one of its passenger trains, to return to Manistique; and, relying upon the representations made by the agent of the defendant at the time of the purchase of the said ticket, he requested the conductor to give him a lay-over check, or allow him to stop off at Whitedale, and proceed to Manistique on the next train, which the defendant, by its said agent, 'conductor,' absolutely refused to do, and the said conductor refused to carry him unless he would pay a large amount, to wit, thirty-five cents, as additional fare, which he was unable to do, upon which he ordered him to leave the car, which the plaintiff refused to do, upon which the conductor signaled the engineer to slack the speed of the train, and he, the said conductor, and another agent of the defendant, called a 'brakeman,' seized violently hold of the plaintiff, and with force and violence, and against his will and resistence, not waiting for the said train to stop, and while said train was running at a high rate of speed, to wit, at the rate of ten miles per hour, forcibly ejected said plaintiff from and off the cars, throwing him with violence from the platform of the cars to the ground, while the cars were so in motion." The opening of counsel to the jury was based upon this declaration. The original declaration and the opening statement of counsel were based upon the allegation that plaintiff was lawfully upon defendant's train; that he was in possession of a ticket which entitled him to ride over the portion of the road he was then on; that he was on the return trip; that he asked the conductor for leave to stop over at Whitedale; that the conductor informed him he could not, without paying 35 cents extra, which would make the regular fare for the trip; and that, refusing to do this, he was ejected from the train before reaching Whitedale,-the station where he desired to stop over. After the defendant was sworn, and it was ascertained by his counsel, conceded, and held by the court, that he could not recover upon that declaration, under the testimony which the plaintiff gave, the plaintiff was permitted to amend his declaration by changing the date, the direction, and the train by which he was traveling. The amended declaration showed that he was not a passenger, but a trespasser, upon another train than the one stated in the declaration, and controlled by a different train crew; he had given up the outgoing portion of his ticket, and had nothing to show that he was entitled to ride upon the defendant's train. The conductor in charge of the train upon which he went to Whitedale had taken it up, and had not given him a lay-over check. Under the first declaration, he was unlawfully ejected; under the second, he was lawfully ejected, and there was no liability unless he was ejected while the train was in motion. The sole ground of liability, under the amendment, was an act so inhuman and wicked as to be almost beyond belief. The only thing in common between the two declarations is that the manner of ejecting in the one is the same as that in the other. It is argued by the defendant's counsel that the amendment introduced an entirely new cause of action, not permissible under the statute of amendments. There is much force in the contention, but the statute permits amendments "in substance," and is so broad that we are not prepared to hold that the court erred in permitting the amendment.
2. The court instructed the jury that "unless you find, by a fair preponderance of evidence, and of all the evidence, in the case, that the plaintiff was shoved or pushed, or in some way forcibly ejected, from the train while it was in motion, as alleged in his declaration and claimed in his testimony, your verdict must be for the defendant." The jury should not, in a case of this character, be left, as they were under this instruction, to find that the plaintiff was "in some way forcibly ejected from the train while it was in motion," other than that shown by the evidence, and alleged in the declaration. He had stated how he was ejected, viz. by being pushed or shoved off while the train was in motion. The instruction should have limited the jury to the precise manner in which the act was committed.
3. The court instructed the jury that: "A defendant railway company is always responsible for the acts of its employes when they are on duty, acting in the line of their employment; and if you should find that the conductor Snyder, or any other employe of this company, acting under the conductor's orders, ejected Mr. Brassell, or compelled him to alight, from the cars while they were in motion, as he testifies to, and if he was thereby injured, the defendant is liable." The error in this charge lies in the fact that there is no evidence in the record showing, or tending to show, that Mr. Snyder gave any instructions or orders to the...
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