New Orleans Co v. Jopes

Citation35 L.Ed. 919,142 U.S. 18,12 S.Ct. 109
PartiesNEW ORLEANS & N. E. R. CO. v. JOPES
Decision Date07 December 1891
CourtUnited States Supreme Court

The facts of the case fully appear in the following statement by Mr. Justice BREWER:

On July 24, 1886, the defendant in error (plaintiff below) was a passenger on the train of the plaintiff in error. While such passenger, and at Nicholson station, in Hancock county, Miss., he was shot by Carlin, the conductor, and seriously injured. For such injury, he brought his action in damages in the circuit court of that county. The case was regularly removed to the United States circuit court for the southern district of Mississippi, and a trial resulted in a verdict and indgment on May 15, 1888, in his favor for the sum of $9,500, to reverse which judgment the defendant sued out this writ of error. Of the fact of the shooting by the conductor, and the consequent injuries, there was no dispute. The testimony in the case was conflicting as to some matters, and there was testimony tending to show that the plaintiff approached the conductor with an open knife in his hand, and in a threatening manner, and that the conductor, fearing danger, shot and wounded the plaintiff, in order to protect himself. The bill of exceptions recited that in its general charge 'the court instructed the jury that if the evidence showed that the plaintiff was a passenger on the train, and that he was shot and wounded by the conductor whilst he was such passenger, and whilst prosecuting his journey, and such shooting was not a necessary self-defense, the plaintiff was entitled to recover compensatory damages; but if the jury believe the plaintiff, when shot, was advancing on the conductor, or making hostile demonstrations to wards him with a knife, in such a manner as to put the conductor in imminent danger of his life or of great bodily harm, and that the conductor shot plaintiff to protect himself, the plaintiff was not entitled to recover; but if it appeared that the conductor shot the plaintiff whilst such passenger and prosecuting his journey, wantonly and without any provocation at the time, then the jury might award exemplary damages.' And further, that, 'responding to the request of defendant that the court should instruct the jury that if they believed from the evidence that when Carlin shot the plaintiff, he, Carlin, had reasonable cause to believe from Jopes' manner and attitude that he, Jopes, was about to assault Carlin with the knife, and that it was necessary to shoot him to prevent great bodily harm from Jopes, then that the jury should find for defendant, whether Jopes was intending to do Carlin great bodily harm or not, the court declined to instruct, but instructed that, in that state of the case, if Carlin shot under the mistaken belief from Jopes' actions that he was in danger of great bodily harm then about to be done him by Jopes, when in fact Jopes was not designing or intentionally acting so as to indicate such design, the plaintiff should be entitled to compensatory damages, and not punitive damages.' To this last instruction an exception was taken, and this presented the substantial question for consideration.

Edward Colston, for plaintiff in error.

Marcellus Green and Calderon Carlisle, for defendant in error.

[Argument of Counsel from pages 20-21 intentionally omitted] Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.

A preliminary question is raised by counsel for the defendant in error. It is insisted that the bill of exceptions does not show that this exception was taken at the trial, and while the jury was at the bar, and therefore not in time. In support of this contention several authorities are cited. While it is donbtless true that, if the exception was not taken until after the trial, it would be too late, and to that effect are the authorities, yet we do not think the record shows that such was the fact in this case. The trial commenced on the 14th and was concluded on the 15th, and the bill of exceptions was sealed and signed on the 16th of May. The motion for a new trial was not overruled until the 26th. The bill of exceptions recites in the ordinary form the coming on of the case to trial, the impaneling of a jury, the testimony offered, and the instructions given and refused. In respect to one matter of testimony the bill of exceptions recites: 'Whereupon the court refused to allow the testimony, to which ruling the defendant excepted.' So, following the recital in respect to the last matter of instructions, is the statement 'to which defendant excepted.' It is true, the words used are not 'then and there excepted;' neither is it said that the court 'then and there instructed;' but, as the bill purports to be a recital of what took place on the trial, it is to be assumed that the instructions were given, and the exceptions taken, during and as a part of the trial. The statement as to the exception follows that as to the instructions, and the only fair and reasonable intendment from the language is that, as the one was given, so the other was taken, at the trial. The same form of recital was pursued in the case of U. S. v. Breitling, 20 How. 252, and held sufficient. In the case of Barton v. Forsyth, Id. 532, it appeared that after the verdict and judgment the defendant filed a motion, supported by affidavit, which was overruled. Following the recital of this fact, the record added, 'To all which decisions, rulings, and instructions defendant then and there excepted;' and it was held that such recital showed that the exceptions were taken at the time of the overruling of the motion. In the case of Phelps v. Mayer, 15 How. 160, the verdict was rendered on the 13th of December, and the next day the plaintiff came into court and filed his exceptions, and there was nothing to show that any exception was reserved pending the trial. In Brown v. Clarke, 4 How. 4, it was a matter of doubt whether the exceptions were taken to the instructions or to the refusal to grant a new trial. Of course, in the latter case they would not have been available. In the case of Walton v. U. S., 9 Wheat. 651, it appeared that the exception was not taken until after the judgment.

The reasoning of all these cases makes in favor of the sufficiency of this bill of exceptions, and it may be laid down as a general proposition that, where a bill of exceptions is signed during the term, purporting to contain a recital of what transpired during the trial, it will be assumed that all things therein stated took place at the trial, unless from its language the contrary is disclosed. We hold, therefore, that the record shows that the exception to this instruction was duly taken, and pass to a consideration of the principal question, and that is, whether such instruction contains a correct statement of the law applicable. Its import is that, if the conductor shot when there was in fact no actual danger, although, from the manner, attitude, and conduct of the plaintiff, the former had reasonable cause to believe, and did believe, that an assault upon him with a deadly weapon was intended, and only fired to protect himself from such apprehended assault, the company was liable for compensatory damages. In this view of the law we think the learned court erred. It will be scarcely doubted that if the conductor was prosecuted criminally, it would be a sufficient defense that he honestly believed he was in imminent danger, and had reasonable...

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146 cases
  • McLaurin v. McLaurin Furniture Co.
    • United States
    • United States State Supreme Court of Mississippi
    • 20 Febrero 1933
    ......293. As. sustaining the principle, see Star Brewery Co. v. Hauck, 222 Ill. 348, 78 N.E. 827, 113 Am. St. Rep. 420,. and New Orleans & Northeastern R. Co. v. Jopes, 142. U.S. 18, 12 S.Ct. 109, 35 L.Ed. 919. . . In the. Schubert Case, supra [223 A.D. 502], on appeal, ......
  • Stith v. Newberry Co., 31563.
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    ......Such a verdict is wrong. It is inconsistent and unreasonable." In New Orleans & N.E. Railroad Co. v. Jopes, 142 U.S. 18, 24, 35 L. Ed. 919, the United States Supreme Court said: "If the party who actually causes the injury is ......
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    ......C. R. I. & P. Ry., 200 Mo. 347, 98 S.W. 590; Michely v. Miss. Valley Steel Co., . 221 Mo.App. 205, 299 S.W. 830; New Orleans & N. E. Ry. v. Jopes, 142 U.S. 18; 39 C. J. 1265, note 8. (3) Plaintiff. was not entitled to recover against defendant in this case,. because: ......
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    ...... Co., 105 N.E. 423; Doremus v. Root, 63 P. 572;. Indiana Nitroglycerine Co. v. Lippincott Glass Co.,. 75 N.E. 649; Railroad Co. v. Jopes, 142 U.S. 18;. Hobbs v. Ill. Cent., 152 N.W. 40; Simple v. So. Pac., 177 P. 871; Bardwell v. Shelton, Jr., Store. Co., 4 S.W.2d 479. (2) The court ......
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1 books & journal articles
  • Natural Law and Self-Defense
    • United States
    • Military Law Review No. 206, December 2010
    • 1 Diciembre 2010
    ...199 Id. 200 Id. The honesty of the belief is the key to the legitimacy of the action. See, e.g. , New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18, 23 (1891). The familiar illustration is that, if one approaches another, pointing a pistol, and indicating an intention to shoot, the latter is j......

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