Janny v. Great Northern Railway Company
| Decision Date | 08 January 1896 |
| Docket Number | 9705--(238) |
| Citation | 65 N.W. 450,63 Minn. 380 |
| Parties | MICHAEL JANNY v. GREAT NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Ramsey county, C. D. Kerr, J., denying a motion for a new trial. Reversed.
Order reversed, and a new trial granted.
C Wellington, for appellant.
Kueffner Fauntleroy & Rice, for respondent.
This is an action for the recovery of damages, which the plaintiff claims to have sustained by reason of an assault and robbery committed upon him by the defendant's employes while he was a passenger upon its railway train. He recovered a verdict for $ 268.33, and the defendant appeals from an order denying its motion for a new trial.
The plaintiff alleges in his complaint that he was, on September 7, 1894, a passenger for hire on the defendant's railway train from Crookston to Barnesville in this state, and that after the train reached the latter place, and while he was still a passenger, he was assaulted and robbed of $ 75 by the defendant's employes. These allegations are denied by the answer, but the verdict declares their substantial truth, the jury finding specially that plaintiff was such passenger. The question, then, here for decision is whether the verdict is sustained by the evidence and the law applicable thereto. The verdict cannot be sustained if the relation of carrier and passenger did not exist between the parties at the time of the alleged assault upon the plaintiff. This conclusion necessarily follows from the issues made by the pleadings, and the basis upon which the case was submitted by the trial court to the jury, which was that the plaintiff sued as a passenger, and, if he was, then the defendant owed him the duty of exercising the highest degree of human care for his safety.
We are of the opinion that the finding of the jury that the plaintiff was a passenger on the defendant's railway at the time of the assault upon him is not sustained by the evidence, but is so manifestly against the evidence that it must be set aside. The relation of passenger and carrier is created by contract, express or implied, and we are unable to find any evidence in the record warranting the inference that this contract relation ever existed between the parties hereto. The fair import of the plaintiff's own evidence is that, as to the defendant, he was a mere stowaway, whom the employes of the defendant fraudulently secreted, with his collusive co-operation, in an exclusively freight car, half filled with grain, for the purpose of enabling him to ride at less than half fare, to be paid to such employes for their personal use.
It was established on the trial, beyond reasonable controversy, that some time during the forenoon of September 7, 1894, a freight train of the defendant, in charge of a conductor, with two brakemen, arrived at Crookston on its way to its destination Barnesville, where it arrived at 8:55 o'clock p. m. of the same day. There was a caboose attached to the train, and the conductor was authorized to receive and carry passengers on his train in the caboose, and was prohibited from carrying them in any other place. Neither of his brakemen had any authority to collect fares from passengers. It did not appear that notice of these rules was ever brought directly to the attention of the plaintiff, or that the conductor wore any badge or mark designating him as such. The fare for a passenger from Crookston to Barnesville was $ 2.55, and at the time in question the defendant had a ticket office opened at Crookston for the sale of tickets to passengers. The plaintiff did not speak English, and had never before ridden on a freight train, but he had been in this country two years, and had traveled on passenger trains.
The plaintiff's testimony as to his taking passage on the freight...
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