Hayes v. Southern Ry. Co.

• Decision Date: 24 April 1906
• Parties: HAYES v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

53 S.E. 847

141 N.C. 195

HAYES v. SOUTHERN RY. CO.

Supreme Court of North Carolina

April 24, 1906

Appeal from Superior Court, Guilford County; Cooke, Judge.

Action by Glenn Hayes, by his next friend, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Partial new trial.

In an action against a railroad for injuries received by plaintiff a trespasser on defendant's train, through being ejected therefrom, it was not reversible error to submit all three issues: First, was plaintiff injured by the negligence of defendant? Second, was plaintiff injured by defendant negligently, wantonly, and forcibly ejecting him from its moving train as alleged in the complaint? Third, what damages is plaintiff entitled to recover, if any? although the case could have been presented under the first and third issues.

Action to recover damages for forcible ejection from the defendant's train. The court submitted the following issues: (1) Was the plaintiff injured by the negligence of the defendant? Ans. Yes. (2) Was the plaintiff injured by the defendant company negligently, wantonly, and forcibly ejecting him from its moving train, as alleged in the complaint? Ans. Yes. (3) What damages is the plaintiff entitled to recover, if any? Ans. $1,800. To the second issue the defendant excepted. From the judgment rendered defendant appealed.

King & Kimball, for appellant.

Brooks & Thompson, for appellee.

BROWN J.

1. The second issue was unnecessary. The entire case could have been presented under the first and third issues, or, in view of the evidence, it could have been better presented under the second and third issues without the first. But it is not reversible error to have submitted all three.

2. The evidence is somewhat conflicting; but plaintiff's evidence tended to prove that plaintiff, a 17 year old boy boarded a mixed freight and passenger train at Greensboro for the purpose of riding to Summerfield; that he and the brakeman sat down on top of a box car side by side, and rode a couple of miles when the brakeman ordered plaintiff to get off the train, cursing him, and using violent and threatening language; that the plaintiff remonstrated, saying that he was willing to get off if he would stop the train, and agreeing to do so when the train stopped at the Battle Ground, the next station; that the brakeman continued cursing, drove him from the top of the train down the ladder along the side of the train, and followed him, stamped on his fingers and finally drove him from the train, causing him to fall, when his leg struck the clearance post, which threw him under the wheels of the car, crushing off his right leg, and severely mashing his left foot. The brakeman, according to the testimony of all the witnesses, was on duty as brakeman, and was in the discharge of his usual duties as brakeman at the time of the occurrence. All the evidence discloses that plaintiff was a trespasser and wrongfully on defendant's train, and that he was attempting to perpetrate a fraud on defendant by beating his way on top the car, with the brakeman's connivance at the start. Yet it seems that under our authorities he may recover damages of the defendant for the violence of the brakeman, although the plaintiff could not recover had he been injured in an accident resulting from negligence, for the company owed him no duty as a passenger. It is said in Pierce v. Railroad, 124 N.C. 83, 32 S.E. 399, 44 L. R. A. 316, that "a trespasser's wrongful act in getting on a car does not justify making him get off in a manner calculated to kill or cripple him." To the same effect is Lewis v Railroad, 132 N.C. 382, 43 S.E. 919; Cook v. Railroad, 128 N.C. 333, 38 S.E. 925, and authorities therein cited.

3. It was within the scope of the brakeman's agency to eject trespassers from the train, and therefore it follows that if he did it in an unlawful and violent manner, thereby endangering life or limb, the defendant is responsible for his conduct. This is so held in Cook's Case, supra, and many other cases. In the case of Hoffman v. R. R., 87 N.Y. 25, 41 Am. Rep. 337, the Court of Appeals of New York says: "In this case the authority to remove the plaintiff from the cars was vested in the defendant's servants. The wrong consisted in the time and mode of exercising it. For this the defendant is responsible, unless the brakeman used his authority as a mere cover for accomplishing an independent and wrongful purpose of his own." Higgins v. R. R., 46 N.Y. 23, 7 Am. Rep 293; Rounds v. R. R., 64 N.Y. 129, 21 Am. Rep. 597; Railroad v....