Powell v. Erie R. Co.

• Decision Date: 22 June 1904
• Citation: 58 A. 930,70 N.J.L. 290
• Parties: POWELL v. ERIE R. CO.
• Court: New Jersey Supreme Court

58 A. 930

70 N.J.L. 290

POWELL

v. ERIE R. CO.

Court of Errors and Appeals of New Jersey.

June 22, 1904.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Joseph Powell against the Erie Railroad Company. Judgment of nonsuit. Plaintiff brings error. Affirmed.

Alexander Simpson, for plaintiff in error.

Collin & Corbin, for defendant in error.

PITNEY, J. This was an action to recover damages for personal injuries. The trial judge at the close of the plaintiff's evidence directed that judgment of nonsuit be entered. Reversal of this judgment is now sought.

Taking a view of the evidence most favorable to the plaintiff, the facts of the case are as follows: The plaintiff, an able-bodied man about 21 years of age, on an afternoon in the month of July, undertook to steal a ride upon a combined freight and coal train operated by the defendant He jumped upon one of the coal cars while the train was in rapid motion, seized the grab handle with both hands, and secured the footing with both feet upon the iron step at the side of the car. He had not reached a place of safety upon the train, but was in the act of climbing up. While he was in this position, the train having run only a few feet after he jumped upon it, a man whom he did not see, but whom another witness undertook to identify as one of the brakemen of the train, began throwing pieces of stove coal toward the plaintiff. The brakeman stood upon a coal car, about three cars ahead of the plaintiff. Three pieces of coal were successively thrown. None of them struck the plaintiff, but they all struck the car near to him. The third piece would have struck him if he had not "ducked" to avoid it. As he "ducked," he released bis hold upon the grab iron and thereupon fell from the train, stumbled, and was thrown under the wheels. For the physical injuries thus sustained the present action was brought.

Assuming that the man who threw the coal was a brakeman in defendant's employ, and was authorized to represent the defendant in ejecting a trespasser, so as to render the defendant responsible for bis acts, within the rule laid down in West Jersey & Sea Shore R. R. Co. v. Welsh, 62 N. J. Law, 655, 42 Atl. 736, 72 Am. St. Rep. 659, we still think the judgment of nonsuit was correct. The plaintiff, on his own showing, was engaged in committing a trespass, which by our statute is made a misdemeanor. P. L. 1898, p. 853, § 214. The defendant, therefore, owed to him no duty beyond refraining from acts willfully injurious to him. Excessive or improper force applied in the effort to eject him would of course be actionable; but no physical force was exerted. He was not touched by any of the pieces of coal. His case, therefore, must rest, if at all, upon the ground that he was so threatened with violence by the brakeman that either in the necessary attempt to avoid it he accidentally lost his hold upon the car, or that he was so over come with fear that thereby he lost his presence of mind and self-control, and for this reason let go his hold....