Norfolk & W. R. Co v. Gaxliher.1

• Decision Date: 09 February 1893
• Citation: 89 Va. 639,16 S.E. 935
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. R. CO. v. GAXLIHER.1

16 S.E. 935

89 Va. 639

NORFOLK & W. R. CO.

v.GAXLIHER.¹

Supreme Court of Appeals of Virginia.

Feb. 9, 1893.

Cakkieks — When Relation op Passenger Exists—Assault by Employe.

1. It is the lawful right of every citizen prima facie to become a passenger on a railway train, and neither the purchase of a ticket nor the entry into the car is essential to create the relation of carrier and passenger, and where a person enters the ticket office of a railway company to buy a ticket he is entitled to the protection of a passenger, even though the agent refused to sell him a ticket.

2. The mere fact that a night watchman in the employ and pay of a railroad company was sworn in as a special policeman by the city mayor at the request of the company, where the mayor was not authorized by law to appoint a special policeman for the company, gave the policeman no authority to make arrests as an officer of the law, and the company would be liable

in damages for false imprisonment and assault on a passenger, committed by such special policeman in the discharge of his duties as watchman.

Hiuton and Lacy, JX, dissenting.

Error to corporation court of Bristol.

Action byO. G. Galliher against the Norfolk & Western Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed by divided court.

Gen. W. Ward and A. H. Blauchard, for appellant.

Fulkerson, Page & Hurt, for appellee.

Fauntleroy, J. This is a, writ of error to a judgment of the corporation court of the city of Bristol, entered at the July term, 1891, in an action of trespass on the case in said court pending for unlawful ar rest and imprisonment, in which the defendant in error, C. G. Galliher, is plaintiff, and the plaintiff in error, the Norfolk & Western Railroad Company, is defendant. The jury rendered a verdict in favor of the plaintiff for the sum of $650 damages. There was a motion to set the verdict aside, and grant a new trial, upon the ground that the verdict is contrary to the law and the evidence, which motion the court overruled, and entered judgment upon the said verdict. Upon the trial of the case the court gave instructions, to the giving of which the defendant objected and duly excepted. Theevidence is certified by the court, and not the facts. From the testimony of the defendant in error it appears that the plaintiff, C. G. Galliher, 70 years of age, who resided near Abingdon, in Washington county, Va., was in Bristol on the I6th day of December, 1890; and a few moments before the midday departure of the train of the Norfolk & Western Railroad for Bristol he went to the passenger station of the said company at Bristol, and applied at the window of the ticket office for a ticket to Abingdon, near his home. To this application he received the reply, " We are out of tickets;" to which he said, "What is the cause of that, baby?" The ticket agent threatened to have him arrested, and refused to sell him a ticket (on the ground, as the agent testifies, that he was drunk, but the testimony of the said Galliher is that he was not drunk, and the jury believed his statement) instantly, whereupon one John Sharratt, who was employed by the defendant company as a night watchman or policeman, rudely seized him, and wheeled him around violently, and pulled him down off the platform and across a bridge, and forced him through the streets of Bristol and the snow, 12 inches deep, and roughly forced him into a filthy and stinking calaboose, where, after pulling and jerking him around till they dislocated his shoulder and skinned his knee, they threw him down and took from his person his money, knife, and flask of whisky, which he had purchased for his wife for medicinal purposes. He was locked up without a place to sit down, and without a fire, and kept imprisoned there for two or three hours, until after dark. He expostulated: "Gentlemen, I have done nothing. You had no right to put me in this calaboose. I have done no wrong." In his testimony he says: " They shut the door and left me in there. I got so cold I couldn't stand it. I stayed there, and had no fire, and had no place to sit down, and just stood there shivering, and no place to rest, and stood up against the wall. 1 got in the corner and leant myself. I got so weak—I had been on my feet for six hours. I said I would give what little money I had to see Col. Fulkerson. I couldn't see none of my family and children, and kept sinking down. Some one came in there, and I said, 'Please go...