Pacelli v. Peoples Railway Company

• Decision Date: 03 December 1914
• Citation: 93 A. 560,28 Del. 343
• Court: Delaware Superior Court
• Parties: SALVATORE PACELLI v. PEOPLES RAILWAY COMPANY, a corporation of the State of Delaware

93 A. 560

28 Del. 343

SALVATORE PACELLI v. PEOPLES RAILWAY COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

December 3, 1914

Superior Court, New Castle County, November Term, 1914.

ACTION ON THE CASE (No. 38, May Term, 1914) by Salvatore Pacelli against the Peoples Railway Company, a corporation of Delaware, for personal injuries to plaintiff.

The plaintiff, in substance, testified that on the evening of October 12, 1913, at about half past five o'clock, he was a passenger on a trolley car of the defendant company running west on Sixth Street in the City of Wilmington, and that when the car reached a point about a square east of Scott Street he told the conductor he wished to get off at Scott Street and then worked his way through the crowded car toward the front door; that the motorman did not stop at Scott Street and--

"I told him, 'Why don't you stop at Scott Street?' and he told me 'Shut up, you d--d guinea; if you don't I will throw you off the car.' He never stopped at Lincoln Street, which is the next street to Scott, and I asked him, 'Why don't you stop at Lincoln Street?' and he grabbed me back of my shoulders and said 'Go to h--, you d--d son of a b-- guinea,' and throwed me off the car. I did not say anything more to him. He grabbed me by my shoulder, and he pushed me down off the car, through the front door which was open. The car was moving all the time and it dragged me about twenty feet; I held on and it got stronger than my arm and I fell down."

The motorman was called as a witness for the defendant and testified in substance that:

"On the afternoon the plaintiff has referred to, we left Fourth and Church Streets at a quarter past five. It is a heavy trip. I suppose we took on about one hundred or one hundred and twenty passengers. We make almost every stop going out Sixth Street all the way to Brandywine Springs. I did not see the plaintiff until we got to Scott Street, and, going down the hill, I was naturally looking for a bell. We got to Scott Street and the plaintiff stood at my left shoulder. The conductor did not give me any bell and naturally I went on and when I got over to the other street, the plaintiff said 'I want to get off here.' I said, 'Where do you want to get off?' He said, 'At Scott Street.' I said, 'You cannot get off at Scott Street now; you are past it. I will let you off at Lincoln Street; we don't stop in the middle of squares,' and the plaintiff muttered something in broken English. I understood him to say something like son a b--. Whether he did say that or not I don't know, but he was making some funny motions just like a man that is excited. I didn't know but that he might hit me in the back. I was working and not supposed to see what is going on behind me. Before I would take any chances of having any trouble I opened the door and off he went. I wound up the brakes tight enough to bring the car to a stop after the man went out. It did not go ten feet. After he went out he still had hold of the grab handle, and as he jumped out, I jumped over him and held him away so that he would not go under the wheels. He dragged about ten feet." "Q. You threw him off just before you got to Lincoln Street? A. Just this side of Lincoln, yes, sir."

The motorman denied that he cursed the plaintiff.

PLAINTIFF'S PRAYERS.

The motorman of the defendant company had no right to throw a passenger off of a moving car, and even if the passenger was a wrongdoer he was bound to bring his car to a standstill before removing the passenger.

Negligence or a wrongful act, on the part of the motorman in charge of the car in question, would be the negligence and wrongful act of the defendant, for which the said defendant company would be liable in damages to the extent of the injuries suffered by the plaintiff. Hearn and Morrow v. Wil. City Ry Co., 1 Boyce 271, 277, 76 A. 629; Little Rock Elec. Co. v. Goerner, 80 Ark. 158, 95 S.W. 1007, 1010, 7 L. R. A. (N. S.) 97, 10 Ann. Cas. 273.

It is the duty of the defendant company to stop its cars and wait a reasonable time for a passenger to get off and not to force him off while said car is in motion. Benson v. Wil. City Ry. Co., 1 Boyce, 202, 206, 75 A. 793.

If the plaintiff was wantonly and willfully thrown from the car of the defendant by the motorman, while the car was in motion, exemplary damages by way of punishment and beyond a mere compensation of the actual injuries may be awarded. Jefferson v. Adams, 4 Harr. 321; Watson v. Hastings, 1 Penn. 47, 52.

If the plaintiff used words of provocation and abuse toward the motorman, nevertheless these alone would not justify an assault by the motorman, and if an assault was thereby committed, the defendant company would be liable for the damages resulting from the assault. Haman v. Omaha Horse Ry. Co., 35 Neb. 74, 52 N.W. 830; Birmingham Ry. & Elec. Co. v. Baird, 130 Ala. 334, 30 So. 456, 54 L. R. A. 752, 89 Am. St. Rep. 43; Birmingham Ry. Light & Power Co. v. Mullen, 138 Ala. 614, 35 So. 701; Hanson v. Urbana & Champayne Elec. St. Ry. Co., 76 Ill.App. 474; Williams v. Gill, 122 N.C. 967, 29 S.E. 879; Palmer v. Winston Salem Ry. & Elec. Co., 131 N.C. 250, 42 S.E. 604; Galveston, H. & S. A. Ry. Co. v. La Prelle, 27 Tex. Civ. App. 496, 65 S.W. 488; Moritz v. Interurban St. Ry. Co. (Sup.) 84 N.Y.S. 162; Chicago & E. R. Co. v. Flexman, 103 Ill. 546, 41 Am. Rep. 33; Coggins v. Chicago & A. R. Co., 18 Ill.App. 620; Wise v. South Covington & C. Ry. Co. (Ky.) 34 S.W. 894; B. & O. R. Co. v. Barger, 80 Md. 23, 30 A. 560, 26 L. R. A. 220, 45 Am. St. Rep. 319.

It would be improper for the court to direct a verdict for the defendant, because the testimony that abusive language was used by the plaintiff has been contradicted by witnesses for the plaintiff; and wherever there is a conflict in the testimony, it is a matter for the jury and not for the court.

DEFENDANT'S PRAYERS.

1. A passenger who uses obscene, profane or vulgar language, or is otherwise disorderly, has no right to remain on the trolley car, whether he has paid his fare or not, and those in charge of the car are justified in ejecting him. Peavy v. Georgia R. R. & B. Co., 81 Ga. 485, 8 S.E. 70, 12 Am. St. Rep. 334.

2. Carriers of passengers stand under a species of police duty toward protecting their passengers, and in the exercise of this police duty it is not only the right but the duty of the carrier to expel passengers who have become so disorderly as to cause or threaten danger, discomfort or annoyance to other passengers. Louisville, etc., R. Co. v. Logan, 88 Ky. 232, 10 S.W. 655, 3 L. R. A. 80, 21 Am. St. Rep. 332; Pease v. Del., etc., R. Co., 101 N.Y. 367, 5 N.E. 37, 54 Am. Rep. 699.

3. If the plaintiff in this case is entitled to recover at all, he is entitled to recover no more than compensation for his actual injuries. He is not entitled to punitive, vindictive or exemplary damages. Freedman v. Met. St. Ry. Co., 89 A.D. 486, 85 N.Y.S. 986; Robison v. Rupert, 23 Pa. 523; St. Louis Ry. Co. v. Myzell, 87 Ark. 123, 112 S.W. 203; Mitchell v. United R. Co., 125 Mo.App. 1, 102 S.W. 661.

4. If the jury believe that the plaintiff is entitled to damages, but believe that nominal damages would be all the plaintiff should have, because of mitigating circumstances, you have the right to award him only nominal damages. Freedman v. Met. St. R. Co., supra.

5. While it is the rule that a carrier of passengers is responsible for the wrongful acts of its employees while in the discharge of their duty, nevertheless this rule does not apply where a passenger provokes an assault by acts or threats of personal violence. Weber v. Brooklyn, 47 A.D. 306, 62 N.Y.S. 1.

6. Neither is the carrier responsible where the passenger commences an altercation with the carrier's employee, using abusive or insulting language, and thus provokes an assault by the employee. Scott v. Central Park R. Co., 53 Hun. 414, 6 N.Y.S. 382; James v. Met. St. Ry. Co., 80 A.D. 364, 80 N.Y.S. 710; Harrison v. Fink (C. C.) 42 F. 787; Peavy v. Georgia R. Co., 81 Ga. 485, 8 S.E. 70, 12 Am. St. Rep. 334; Eads v. Met. R. Co., 43 Mo.App. 536; L. M. R. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep. 337; Wise v. Covington, 91 Ky. 537, 16 S.W. 351; Id., 34 S.W. 894; Georgia Ry. Co. v. Hopkins, 108 Ga. 324, 33 S.E. 965, 75 Am. St. Rep. 39; Central R. Co. v. Motes, 117 Ga. 923, 43 S.E. 990, 62 L. R. A. 507, 97 Am. St. Rep. 223.

7. If the plaintiff commenced the altercation with and in the course of it addressed indecent and insulting language to the motorman, and language such as was calculated or likely to produce the assault which resulted in the alleged injury to the plaintiff, the verdict must be for the defendant. Scott v. Railway Co., 53 Hun. 414, 6 N.Y.S. 382.

8. If it was the fault of the plaintiff that he was assaulted and injured, in that, by his improper conduct, he provoked the motorman of the car in question to commit the act complained of, such improper conduct is equivalent to contributory negligence on the part of the defendant in unfitting the employee for properly observing his duty toward passengers, and in such case your verdict should be for the defendant. 4 R. C. L. § 599, page 1172, and cases cited.

9. If the court should refuse the instructions numbered 7 and 8, the defendant requests the following instruction:

If the plaintiff engaged in an altercation with the motorman and in the course of it addressed indecent, insulting and provocative language to the motorman, such as was likely to produce the assault which resulted in the plaintiff's injury, such conduct on the part of the plaintiff may be taken into consideration by the jury in mitigation of damages and may even be sufficient to reduce damages to a nominal amount.

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