Goodwin v. Cincinnati Traction Co.

• Decision Date: 18 January 1910
• Parties: GOODWIN v. CINCINNATI TRACTION CO.
• Court: U.S. Court of Appeals — Sixth Circuit

175 F. 61

GOODWIN v. CINCINNATI TRACTION CO.

United States Court of Appeals, Sixth Circuit.

January 18, 1910

Orris P. Cobb and Oliver G. Bailey, for plaintiff in error.

Joseph Wilby, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and McCALL, District Judge.

McCALL District Judge.

The plaintiff, Charles Goodwin, brought this suit, against the defendant, the Cincinnati Traction Company, to recover damages for injuries inflicted on him while a passenger on defendant's street railway by one of defendant's servants. At the conclusion of all the testimony, upon motion of defendant's counsel, the court below directed a nonsuit, and taxed the costs against the plaintiff. The plaintiff duly excepted to the action of the court, and has prosecuted a writ of error to this court.

Eleven errors are assigned. At the hearing these were condensed and presented under three general heads.

The first assigned error, and the only one we deem it necessary to consider is 'That on the merits the court erred in sustaining either a motion to direct a verdict or a motion for a nonsuit on the ground that the defendant was not liable for the assault by the inspector.'

From the testimony it appears that in the early morning of April 17, 1907, the plaintiff entered one of the defendant's street cars at Forest and Harris avenues to be transported to his place of work, at or near Central avenue and Fourth street, Cincinnati, Ohio. After paying his fare to the conductor, he applied for, and was given, a transfer ticket to enable him, when the car arrived at Fifth and Vine streets, to transfer to an East End car which would carry him to or near his destination. The car that plaintiff boarded was crowded with passengers, and when it had reached a point known as Peeble's corner, at the intersection of McMillan and Gilbert avenues, they were informed by one Bresnan, an inspector of the defendant company, that that car would not go to the city, but would be turned back to Norwood, and he directed them to leave it at that point and take another car which would carry them to the city. Bresnan, the inspector directed the passengers, amongst them the plaintiff, to go to Sardino corner, some 50 or 60 feet from the car, and wait there, and he would see that they were taken to their destination.

While they were leaving the car, and going to the point indicated by Bresnan, where they were to catch the car on to the city another inspector of the defendant company, Hess, by name appeared upon the scene. The duty of these two inspectors was the same, which was, among other things, to direct the movements of the cars and passengers in such an emergency as this. After Inspector Hess appeared, both he and Bresnan were engaged in seeing that these passengers were transferred to the proper cars, and, in addition, Inspector Bresnan was aiding in switching the Norwood car so as to send it back in the direction from which it came. After the plaintiff, Goodwin, had gone to or near the place indicated by Bresnan, where he was directed to await the car to which he was to be transferred, and while he was waiting for the car, Inspector Bresnan approached Goodwin from the rear and struck him two or three blows with a switch iron, weighing eight or nine pounds, and injured him. There is considerable conflict in the testimony as to what was said by the parties before and at the time of leaving the car. With...