Brown v. Atlantic Coast Line R. Co.

• Decision Date: 26 March 1913
• Citation: 77 S.E. 777,161 N.C. 573
• Parties: BROWN v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

77 S.E. 777

161 N.C. 573

BROWN v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

March 26, 1913

Appeal from Superior Court, Pender County; Carter, Judge.

Action by R. E. Brown against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The rule that, on motion for nonsuit, the evidence, which makes for defendant's justification or defense, must be taken as true applies to a charge that, if the evidence is to be believed or the facts are as testified to, verdict should be for plaintiff.

In an action against a carrier for damages for an assault by its conductor upon a passenger, the evidence elicited on the cross-examination of defendant's witnesses cannot be accepted as the true version in determining whether defendant was entitled to have its defense presented to the jury.

The evidence of plaintiff tended to show: That on the 7th of March, 1910, he was a passenger on defendant's train having purchased and holding a ticket from Wilmington, N. C to Rocky Point. That, after the conductor had taken up plaintiff's ticket, plaintiff went forward to the smoker and was again forced to pay his fare under threat of being ejected from the train; the conductor insisting that no ticket or fare had been collected from plaintiff. That, after a verbal altercation, the conductor left the car, and when the train stopped at Rocky Point, plaintiff's destination, and as he was endeavoring to alight, having some bundles in one arm, and when he stepped down on the platform he was seized by the baggageman, the porter, and another and searched by the conductor. That plaintiff was then turned loose, and, in the quarrel that ensued, the conductor called plaintiff a liar. Plaintiff said, "You are another;" and he was then knocked down and beaten and injured by the conductor, to his great damage.

There was evidence offered by defendant in denial of plaintiff's right to recover, and, on issues submitted, the following verdict was rendered:

"First. Did the defendant company, through its employés, assault and beat the plaintiff, as is alleged in the complaint? Answer: Yes.

"Second. Had the plaintiff's contract of carriage ended before he was assaulted? Answer: No.

"Third. What damage, if any, is the plaintiff entitled to recover? Answer: $5,000."

On the first issue the court charged the jury as follows: "First. Did the defendant company, through its employés, assault and beat the plaintiff, as alleged in the complaint?" It is not denied that, upon the instant of the plaintiff leaving the train, he was seized and held by authority and under the directions of the conductor for a space of a few seconds at least, and that, while being so held, his person was searched by the conductor by his feeling on the outside of the pockets of the plaintiff; and, since in the opinion of the court the evidence fails to disclose any legal justification for the seizure of the plaintiff's person and the search made at that time, the court instructs the jury that, if they believe the evidence, they will answer the first issue, "Yes." Defendant excepted.

Judgment on the verdict for plaintiff, and defendant excepted and appealed.

Davis & Davis, of Washington, N. C., J. T. Bland, of Burgaw, and H. L. Stevens and K. O. Burgwin, both of Wilmington, for appellant.

R. G. Grady and Herbert McClammy, both of Wilmington, for appellee.

HOKE J.

It has been repeatedly held that, on motion to nonsuit, the evidence, which makes for defendant's justification or defense, must be taken as true and interpreted in the light most favorable to him. Deppe v. Railroad, 152 N.C. 79, 67 S.E. 262; Cotton v. Railroad, 149 N.C. 229, 62 S.E. 1093. The same rule is properly applied to a charge, "If the evidence is believed," or if the facts are as testified, etc., and operates in favor of any litigant whose rights are adversely affected, whether plaintiff or defendant

Applying the principle, while the testimony of plaintiff, if accepted by the jury, clearly established an actionable wrong on the part of the conductor and employés, for which the defendant is responsible (Stanley v. Railroad, 160 N.C. --, 76 S.E. 221, Berry v. Railroad, 155 N.C. 287, 71 S.E. 322, and Hutchinson v. Railroad, 140 N.C. 123, 52 S.E. 263, 6 Ann. Cas. 22), we think there was error in the portion of his honor's charge above excepted to; and upon this feature of the case also, and on the entire evidence, the defendant is entitled to have the issue as to its liability referred to the decision of the jury.

Upon this question, a summary of the plaintiff's evidence has been heretofore given. On the part of the defendant, there was testimony tending to show that plaintiff had not given the conductor any ticket, and failed and refused to exhibit one when asked for it, claiming that his ticket had been already taken up; that, after discussing the matter, the conductor insisted on a ticket or payment of fare and compelled the payment of the cash fare; that his manner was considerate, and that of plaintiff was improper, and that he showed signs of being under the influence of whisky; that, when plaintiff paid the money to the conductor, he told him that he would get even with him at Rocky Point, two of the passengers testifying that he said this with an oath; that when the conductor left the car, after having told the plaintiff he would have to pay or be put off, or after he had paid, two passesgers testified that they saw plaintiff move something from his hip pocket to the front pocket of his coat, and that the witness took it to be a pistol; that the witness informed conductor that he had better be careful, and that he had seen plaintiff put a pistol in his coat pocket; that the conductor thanked him and, going forward to the baggage car, told the baggageman about it and asked him to come out and watch out for him while he assisted the passengers in getting off; that this was done, and, as plaintiff came down the steps, some of the passengers called out, "Look out for that fellow, he has got a pistol;" and, as he got off the train, the baggageman seized and held him, and, when the passengers were helped off, the conductor went to him and searched him by putting his hand over the outside of plaintiff's pockets, and, finding nothing, told the baggageman he had nothing, to turn him loose, and signaled the train forward; that, as it moved away, plaintiff made an assault on the conductor, struck him and kicked him, and the conductor struck him back and in the fight knocked plaintiff down.

The officer's own evidence as to what occurred after the fare was paid is as follows: "After we left the water tank at Castle Hayne, he went in front of the platform in the door and commenced smoking cigarettes, and I told Brown it was objectionable to smoke there, to come back in the car; that it was against the rules to ride on the platform of the car. Brown said, 'You have too much to say.' I told him I was sorry he took it that way. Brown said, 'Well that's all right; you made me pay my fare; damn you, I...