Heggen v. Ft. Dodge, D.M. & S.R. Co.
| Decision Date | 08 March 1911 |
| Parties | PETER HEGGEN v. FT. DODGE, DES MOINES & SOUTHERN RAILROAD COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--HON. ROBERT M. WRIGHT, Judge.
ACTION to recover damages for personal injury resulting to plaintiff while a passenger on defendant's train from being assaulted and beaten by the conductor on said train through no misbehavior on his part and through the wilful and malicious act of said conductor. The defendant alleged misconduct of the plaintiff as a passenger, and also alleged that at the time of the injury to plaintiff the latter was in an intoxicated condition and had a bottle of whisky in his pocket over which there was a loud, boisterous, abusive, and annoying controversy with other persons on said car, and that under and by virtue of the law of Iowa the conductor was invested with the right to eject plaintiff from the car for such conduct and use reasonable means to do so, and that all his acts and doings while so engaged were in pursuance of the authority delegated to him by law for which defendant was in no manner responsible. There was a verdict for plaintiff in the sum of $ 152.53, and from judgment on this verdict defendant appeals.
Affirmed.
Dyer & Dyer, for appellant.
D. G Baker, for appellee.
There is no contention on the part of appellant that the case was not properly submitted to the jury or that the verdict was not supported by the evidence, unless there was a failure of the court to properly leave it to the jury to determine whether the conductor in assaulting and mistreating the passenger was acting as an official agent or representative of the state in such manner and to such extent as that the defendant was not liable for what was done.
The appellant relies wholly upon the provisions of Acts Thirty-third General Assembly, chapter 141 (1909), which are as follows:
Section 1. Any person who shall drink intoxicating liquor as a beverage on any passenger railway car or street car in service or who shall use profane or indecent language on such railway or street car shall be guilty of a misdemeanor.
Section 2. Any conductor of a railway train or street car carrying passengers shall have the right to refuse to permit any person not in the custody of an officer, to enter any passenger car on his train or street car in his charge who shall be in a state of intoxication; and shall have the further right to eject from his train at any station or from his street car at any regular stop any person found in a state of intoxication or drinking intoxicating liquors as a beverage, or using profane or indecent language on any passenger car of his train or any street car under his charge and for that purpose may call to his aid any employee of the railway or street car company.
The first section of this statute alone is immaterial for present purposes, for it is plain that the commission of a misdemeanor by a passenger would not justify or excuse the defendant for the act of its conductor in assaulting or mistreating him, and that, while it was proper for the conductor to use all reasonable means at his command to preserve order and protect other passengers from inconvenience or annoyance, even to the extent of ejecting an intoxicated person from the car, it was his duty to use no more force than reasonably necessary to effectuate that object. On this subject the court fully instructed the jury, and no complaint as to the instructions given is now made.
But it is contended that under the second section of the Act the conductor was charged with a duty in behalf of the state, and that in performing this duty he was not the agent or servant of the defendant, but a public officer for whose acts and conduct the defendant was not responsible. It is to be noticed, however, that the statute does not impose any duty upon a conductor, nor does it declare that in exercising any authority which the statute purports to give him he is a public officer. It purports to authorize acts by a conductor which may be somewhat broader in scope than those which he would be justified in exercising as the agent or servant of a common carrier of passengers; but it does not purport to relieve the...
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