Clark v. Great Northern Ry. Co.

• Decision Date: 22 March 1905
• Citation: 37 Wash. 537,79 P. 1108
• Court: Washington Supreme Court
• Parties: CLARK v. GREAT NORTHERN RY. CO. et al.

79 P. 1108

37 Wash. 537

CLARK v. GREAT NORTHERN RY. CO. et al.

Supreme Court of Washington

March 22, 1905

Appeal from Superior Court, Spokane County; George W. Belt, Judge.

Action by Thomas J. Clark against the Great Northern Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed.

M. J Gordon and C. A. Murray, for appellants.

Merritt & Merritt and Barnes & Latimer, for respondent.

PER CURIAM.

This case was before this court on a former appeal. The opinion will be found in 31 Wash., at page 658, 72 Pac., at page 477. In addition to the statement of facts contained in the former opinion, we deem it sufficient to say that the plaintiff was a trespasser on the Great Northern train out of Spokane, and refused to leave the train at the request of the conductor in charge, who is one of the defendants in this action. The plaintiff was forcibly ejected from the train at Hilliard, in Spokane county, and brought this action against the railway company and its conductor to recover damages for injuries received at the time of his expulsion.

Only two questions are presented by the pleadings: One, the question of excessive force used in ejecting the plaintiff from the train; the other, the amount of damages sustained. The plaintiff had judgment below, and defendants appeal. All the errors assigned relate to instructions given or requested instructions refused, and to the refusal of the court to grant a new trial. It was conceded at the trial that the respondent was a trespasser on the train, and offered resistance to his removal. Under these circumstances the appellants requested the court to charge the jury that they would only be liable in case of palpable and perfectly apparent use of force beyond that which was necessary to be used in overcoming the resistance offered by the respondent and that there could be no recovery for injuries received except such as were willfully, wantonly, or maliciously inflicted. On the other hand, the court instructed the jury that the appellants were liable for the use of force beyond that which was necessary to be used in overcoming the resistance offered by the respondent, and that the appellants were not liable for injuries received, except such as were the result of the use of excessive force. The true rule is that, in removing trespassers from a train, the employés of the company may use such force as appears reasonably necessary, under all the circumstances, to accomplish the end in view; and, if the trespasser offers forcible resistance, a jury should not weigh with too much nicety the degree of froce resorted to. We think the instructions given in this case fairly come within the above rule, but, inasmuch as the judgment must be reversed on other grounds, it is unnecessary to comment further on the instructions, as the same questions will not arise again.

In passing upon the motion for a new trial, the court below used the following language: 'I am compelled though reluctantly, to deny the motion for a new trial in this case. My reluctance arises from the fact that, in my opinion, the weight of the evidence did not sustain the contention that excessive force was used in ejecting plaintiff from the train; but that issue was submitted to the jury, and was decided in favor of the plaintiff, and as under our judicial system, the trial judge in a civil jury case has little more power or authority than a 'mentor at a town meeting,' I am not at liberty to disturb the jury's finding on that issue.' It appears from the foregoing statement that the trial court labored under an entire misapprehension as to its powers and its duties. Our statute provides that a new trial may be granted, among other grounds, for insufficiency of the evidence to justify the verdict; and this power must be exercised by the trial courts, if at all. These courts should take due care no to invade the legitimate province of the jury; but, if, after giving full consideration to the testimony in the light of the verdict, the trial judge is still satisfied that the verdict is against the weight of the evidence, and that substantial justice has not been done between the parties, it is its duty to set the verdict aside. In Railway Co. v Kunkel, 17 Kan. 172, Mr. Justice Brewer says: 'The judge has the same opportunity as the jury for forming a just estimate of the credence to be placed on the various witnesses, and, if it appears to him that the jury have found against the weight of the evidence, it is his imperative duty to set the verdict aside.' In Reid v. Insurance Co., 58 Mo. 421, the court says: 'Where the trial court is of the opinion that the verdict is not supported by the evidence or is against the weight of evidence, it should never hesitate in exercising the power and giving the...