Cunningham v. Seattle Elec. Ry. & Power Co.

• Decision Date: 12 January 1892
• Citation: 3 Wash. 471,28 P. 745
• Court: Washington Supreme Court
• Parties: CUNNINGHAM v. SEATTLE ELECTRIC RAILWAY & POWER CO.

28 P. 745

3 Wash. 471

CUNNINGHAM v. SEATTLE ELECTRIC RAILWAY & POWER CO.

Supreme Court of Washington

January 12, 1892

Appeal from superior court, King county; J. A. STRATTON, Judge.

Action by I. B. Cunningham against the Seattle Electric Railway &amp Power Company for unlawful ejection from a street-car. Verdict and judgment for plaintiff. Defendant appeals. Modified.

Wiley, Hale & Scott, for appellant.

Cole, Blaine & De Vries, for respondent.

STILES J.

The appellant's points in this case are confined to two classes: (1) Exceptions to instructions asked and given; (2) the excessiveness of the verdict and judgment.

As to the first class, we can give no relief. The instructions although the most of them, according to the statement of the brief, were given at the request of one or the other party, are unnumbered and unseparated, and not in any way designated so that they can be distinguished. Besides which, they were not excepted to. At the end of the court's charge this only occurs: "Counsel for defendant: We except to the instructions given as requested by plaintiff, and also to the instruction refused as asked by defendant; also, further, to the order in which the instructions were given,-the giving of the instructions asked by the defendant in advance of those asked by plaintiff." This exception may have been intelligible to the court below at the time it was made, but it is obviously not so to us. Since the argument we observe some pencil-marks scattered through the charge which might assist us to make a tolerable guess that certain portions of the charge were given at the request of the plaintiff, some of which we might find objectionable; but such doubtful lead-pencil interlineations do not make a record for an appellate court. The statement of facts shows no requests of the defendant refused by the court, although several are gravely argued in the brief.

But upon the other point we cannot, in reason, allow the judgment to stand. The respondent sued for damages for his expulsion from a passenger-car of the appellant by the conductor at 10 o'clock at night. In his complaint he says that he was without any fault or neglect on his part, assaulted and beaten, and forcibly and violently ejected from the car, by the agents and servants of the appellant, and that immediately afterwards the said agents and servants caused him to be arrested and taken to police head-quarters, where he was compelled to give bail in $25, and was on the following day charged with disturbing the peace, tried, and discharged; and he further says that, by reason of the assault and battery upon him, he was injured in the neck and shoulder to the extent of $25; that by reason of his arrest he had to pay out $50 to an attorney; and that the injury to his reputation and the indignities heaped upon him have further injured him in a very large sum. The answer admitted the facts alleged in the complaint, (except the arrest,) including the expulsion from the car, and justified the treatment of the respondent on the ground that he was intoxicated, quarrelsome, abusive, and obscene in his language in the presence of other passengers. The testimony showed that, as the respondent was going home on board appellant's car, with a friend, the former gave the conductor 10 cents, and signed to him that he paid two fares. The friend paid his own fare, which was the second fare intended to be paid by respondent. After the conductor had reached his place at the rear of the car, respondent called him forward, and demanded "change." Whereupon and conductor reminded him that he had indicated that he was paying two fares, and told him that he had "rung them up," so that they belonged to the company, and he could not repay him. Up to this point both stories agree, but beyond there is a very wide divergence. Respondent claims that, although he merely argued with the conductor for the return of his five cents, the latter sharply told him that, unless he "shut up," he would put him off the car. Respondent made no further remarks after the conductor retired, but his companion indulged in some facetiousness, when suddenly the conductor pounced upon the respondent, and roughly put him out,...