Louisville & N. R. Co. v. Ray

• Decision Date: 20 April 1898
• Citation: 46 S.W. 554,101 Tenn. 1
• Parties: LOUISVILLE & N. R. CO. v. RAY.
• Court: Tennessee Supreme Court

46 S.W. 554

101 Tenn. 1

LOUISVILLE & N. R. CO. v. RAY.

Supreme Court of Tennessee.

April 20, 1898

Appeal from circuit court, Haywood county; John R. Bond, Judge.

Action by S. H. Ray against the Louisville & Nashville Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed, with correction.

J. W E. Moore, for appellant.

A. D Bright and H. J. Livingston, for appellee.

WILKES J.

This is an action for damages for personal injury. It was tried before the court and jury, and a verdict and judgment were rendered for $2,500, and the railroad company has appealed and assigned errors.

The facts, so far as are necessary to be stated, are: The plaintiff bought a coupon ticket from the Louisville & Nashville Railroad Company, from Memphis to Jackson, Tenn intending to stop at Humboldt, and transfer in the nighttime to the Mobile & Ohio Railroad. He had fallen asleep on the train, and about 10 o'clock, when it reached Brownsville, he awoke, and, thinking he was perhaps at Humboldt, he went to the door of the car, and got off on the north side, the platform being on the south side. Looking around, he found that he was mistaken as to the place. The train started on about that time, and he attempted to board the coach again, when according to his version, while on the steps or platform (and he could not be certain which), he was struck or shoved by a man wearing the uniform of a railroad employé, and his left hand was knocked loose from the railing. He swung around until his right hand was also twisted from the railing, and then fell on the ground, partly under the car; and his left hand was badly crushed, so that it was amputated, all but the thumb and little finger, and the latter was rendered perfectly stiff. He suffered great pain, and has virtually lost the use of his left hand. The plaintiff was not able to say who it was that struck or pushed him, but thought it was a negro porter, and was certain the person had on the uniform of a railroad employé. The witness was shown the crew of the train, and asked to identify the man who struck or pushed him, but was not able to do so. He was not able to give a very satisfactory or definite answer as to which end of the car he went out at or attempted to re-enter. The theory of the railroad company is that, in attempting to board the train, he fell off, and was not struck or pushed; and evidence is introduced to show the whereabouts of all the train hands or crew, so as to demonstrate that it was impossible for any of them to be present at the time he says he was pushed off.

Eight errors are assigned by the defendant company. The first is to the effect that the court charged the jury that if the injury was done by the defendant, and was the result of gross negligence, fraud, or malice of the defendant, or was inflicted cruelly, wantonly, and oppressively, they might give punitive or exemplary damages in addition to compensatory damages. This is said to be error because the declaration made no claim in terms for exemplary damages. When special damages are claimed arising out of a special or peculiar state of facts, they must be averred before they can be proven. Burson v. Cox, 6 Baxt. 360, 363; Ferguson v. Moore, 98 Tenn. 343, 350, 39 S.W. 341; Fry v. McCord, 95 Tenn. 678, 33 S.W. 568. There is, however, a difference between special damages and exemplary or punitive damages. Special damages are the natural, but not necessary, result of the injury complained of; and hence they must be specially alleged in order that the defendant may have notice thereof, and be prepared to meet the same upon the trial. Exemplary or punitive damages are given as a punishment for fraud, malice, gross negligence, or oppression. They are not based upon the nature and extent of the injury so much as they are upon the oppression of the party who does the injury; and the basis is not so much compensation for any special injury as it is a punishment for the mala fides of the party doing the injury, and is visited upon him on grounds of public policy. While it is necessary to set out in the declaration the facts constituting fraud, malice, oppression, etc., upon which the claim for exemplary damages is predicated, it is not necessary that it be claimed, in so many words, that some or all of the damages are exemplary or punitive. Burson v. Cox, 6 Baxt. 360; 5 Enc. Pl. & Prac. 723; Railroad Co. v. Holland (Ga.) 10 S.E. 200; Express Co. v. Brown (Miss.) 7 South. 318, 8 So. 425; Railroad Co. v. Arnold (Ala.) 4 South. 359.

It is also said that the court erred in not defining "gross negligence," "fraud," "malice," "cruel or wanton and oppressive conduct,"--terms used in the charge. We are of opinion that it was not necessary to give a definition of each or any of these terms as applicable to the facts of this case. If the plaintiff was rudely pushed or knocked off the train, the conduct would readily fall under either head. In addition, there was no request for such definition or the application of the terms to the facts of the case.

It is said that the court erred in charging that if plaintiff was pushed from the train by any of the agents or employés of the train, acting in the scope of their employment or authority, the railroad company would be liable, and, if done in a grossly negligent or oppressive manner, the railroad company would be liable for punitive damages. It is said the error consists in not stating what acts would be in the scope of the employés' authority or liability. And in this connection it is said a railroad company is not liable for the willful and malicious acts of a servant not authorized or approved and ratified by the master, but perpetrated to gratify the private malice of the servant, under mere color of discharging a duty to the master. Unquestionably, the latter proposition is correct law as an abstract proposition, and when applied to trespassers or third persons not passengers; but there was no evidence tending to show in this case any private act of malice, or that the act was done by the wantonness of an individual. On the contrary, the defense was that no injury was done in any way, and that it was a mere accident due to plaintiff's carelessness. The plaintiff was a passenger, and the rule is that a passenger is not only entitled to civil treatment at the hands of all employés, but to their protection; and the railroad company will be held liable for any act of rudeness and oppression resulting in injury to a passenger at the hands of any of its employés while on the train, the safety and proper treatment of the passengers being within the scope of employment and range of duties of every employé. White v. Railway Co. (N. C.) 20 S.E. 191; Railway v. Jefferson (Ga.) 16 S.E. 69; Railroad Co. v. Flexman, 42 Am. Rep. 33; Transportation Co. v. Smith, 16 Lea, 498, 1 S.W. 280; Eichengreen v. Railroad,

96 Tenn. 229, 34 S.W. 219; Packet Co. v. White (Tenn. Sup.) 41 S.W. 583. In addition, it may be added that there was no request for additional instructions, or for the explanation of terms.

The defendant railroad company made four special requests, which were refused,--the first, in regard to the burden of proof; second, to the effect that proof of injury would not raise any presumption of negligence; third, that the crew of the sleeping car were not to be treated as a part of the crew of the train, and the railroad company would not be liable for their acts, especially in vindictive damages; and, fourth, that plaintiff must prove that he was injured in the manner set out in his declaration, if at all.

To be more specific, the first request, in substance, was that, in case of an injury to a passenger, it was incumbent to prove that the proximate cause of the injury was the want of something which, as a general rule, the carrier was bound to supply, or the presence of something which, as a general rule, the carrier was bound...