Palmer v. Winston-Salem Ry. & Electric Co.
| Decision Date | 11 November 1902 |
| Citation | 42 S.E. 604,131 N.C. 250 |
| Parties | PALMER v. WINSTON-SALEM RY. & ELECTRIC CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Forsyth county; Coble, Judge.
Action by Alfred Palmer against the Winston-Salem Railway & Electric Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Glenn Manly & Hendren and Watson, Buxton & Watson, for appellant.
Jones & Patterson, for appellee.
The plaintiff, while a passenger on the street car of the defendant, and somewhat intoxicated, used grossly insulting words to the motorman. Arrived at his destination, the plaintiff got out, deposited his bundles on the sidewalk returned to the car, again got into an altercation with the motorman, turned, and left the car, whereupon the motorman followed him up, and, two or three steps from the car, struck the plaintiff on the back of the head with the lever which controlled the car, knocking him down.
The fact that the plaintiff invited the assault by insulting language or provoking conduct would not bar recovery in a civil action, not even when the parties fight by consent. Bell v. Hansley, 48 N.C. 131; Williams v Gill, 122 N.C. 967, 29 S.E. 879; Cooley, Torts (2d Ed.) pp. 183, 187, 190. The rule in criminal actions is that no words, however violent and insulting, justify a blow, but, if a blow follows, both are guilty, though the party giving the insult strikes no blow. The insult is not a defense, but matter in mitigation of punishment. In a civil action, f the provocation is great, the jury will usually see fit to return nominal or small damages; and, if the amount is less than $50, the plaintiff recovers no more costs than damages. Code § 525 (4). In the civil as in the criminal action, the provocation is a mitigation, not a defense.
The only question which remains is as to the liability of the defendant for the assault upon the plaintiff. If the plaintiff had been a passenger, or his passage had not been fully terminated, or if, when he left the car at his destination, the employé had immediately followed the passenger up and assaulted him, the defendant concedes that there would be no question as to the liability of the company. Daniel v. Railroad Co., 117 N.C. 592, 23 S.E. 327; Williams v. Gill, 122 N.C. 967, 29 S.E 879; Strother v. Railroad Co., 123 N.C. 197, 31 S.E. 386. Here the passage had terminated for the passenger had deposited his bundle and then returned to the car. Railway Co. v. Peacock (Md.) 14 A. 709, 9 Am. St. Rep. 425; Railroad Co. v. Boddy (Tenn.) 58 S.W. 646, 51 L. R. A. 885; Creamer v. Railroad Co. (Mass.) 31 N.E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456; Railway Co. v. Bates, 103 Ga. 333, 30 S.E. 41. But the plaintiff insists, however, that the defendant is liable, notwithstanding, if the motorman assaulted the plaintiff while acting in the scope of his employment. The court so charged, and the exception is that the evidence as above stated did not justify submitting that matter to the jury. In Pierce v. Railroad Co., 124 N.C. 83, 32 S.E. 399, 44 L. R. A. 316, the fireman threw a lump of coal at a boy stealing a ride on the tender of a switching engine, in violation of a town ordinance, knocking him from the engine or frightening him so that he fell and was run over and killed by the engine, which was running backwards. In Cook v. Railway Co., 128 N.C. 333, 38 S.E. 925, a tramp was stealing a ride under a car. A flagman and a brakeman threw rocks at him, striking the rod under him, frightening him and causing him to get off while the car was in motion, whereby his foot was caught and he was badly hurt. In Brendle v. Spencer, 125 N.C. 474, 34 S.E. 634, the plaintiff was watering his team at a stream; and the engineer on a train...
To continue reading
Request your trial
-
Stewart v. Cary Lumber Co.
...Ry. Co., 95 Ky. 11, 23 S.W. 652, 22 L. R. A. 72; Porter v. R. R., 41 Iowa, 358; Ch. & N.W. Ry. v. Bayfield, 37 Mich. 205; Palmer v. Elec. Co., 131 N.C. 250, 42 S.E. 604. Daniel v. R. R., supra, and Sawyer v. R. R., supra, this court applied the principle upon which we have decided this case......
-
Clark v. Bland
... ... Wallace v ... Railroad, ... [106 S.E. 494.] ... 174 N.C. 174, 93 S.E. 731; Palmer v. Railroad, 131 ... N.C. 250, 42 S.E. 604. In this last case the present Chief ... Justice ... ...
-
Loggins v. Southern Public Utilities Co.
...basket, was entitled to be regarded as a passenger on defendant's car and still within the sphere of its protection as such. Palmer v. Electric Co., supra. We he was within his rights, as a passenger, in immediately returning for his basket. This was done with the knowledge and consent, or ......
-
Jones v. Seaboard Air Line Ry. Co.
...is not liable. This is elementary, and the courts "without variableness or shadow of turning" have uniformly so held. In Palmer v. Railroad, 131 N.C. 250, 42 S.E. 604, opinion concludes with the words: "The employé must have been acting at the time within the scope of his employment on the ......