R. R. Springer Transp. Co. v. Smith

• Decision Date: 10 June 1886
• Citation: 1 S.W. 280
• Court: Tennessee Supreme Court
• Parties: R. R. SPRINGER TRANSP. CO. <I>v.</I> SMITH.

Page 280

1 S.W. 280

R. R. SPRINGER TRANSP. CO.

v. SMITH.

Supreme Court of Tennessee.

June 10, 1886.

Appeal from circuit court, Shelby county.

Trespass vi et armis, to recover damages for personal injuries received by plaintiff at the hands of the mate of defendant's steam-boat, on which plaintiff was a passenger at the time. Pleas, not guilty; also son assault demesne. Judgment for plaintiff, new trial denied, and appeal therefrom by defendant.

H. C. Warinner, for plaintiff. L. W. Humes and A. H. Douglass, for defendant.

DEADERICK, C.J.

Smith recovered a judgment, upon the verdict of a jury, in the circuit court of Shelby county, for $1,250, damages for personal injuries by the agent or officer of the company. Smith took deck passage on defendant's boat at New Orleans for Memphis. On the trip the mate of the boat, charged with the duty to supervise the freight, found Smith and some others of the deck hands on bales of moss, and ordered them off; and, according to plaintiff's testimony, they jumped off, and he was resting with his elbow upon the moss, when the mate kicked him in the mouth, knocking out two of his teeth, bruising his lips. The plaintiff's testimony was corroborated by two or three other witnesses who were present. The mate testified that there was sugar in the deck-room, which had been broken into several times, and, having been informed that the sugar was again exposed, he went to the deck-room, and found three men upon the sugar. He ordered them down, and told them to stay off the freight altogether; that some thief had been breaking into the sugar. He got upon the moss, the men got down, and plaintiff turned towards him, pulled out a cotton hook, — a dangerous weapon, — and approached him in a threatening manner, and he kicked him. This version of the affair was corroborated by another witness.

The court charged, in effect, that if the theory of defendant was true they should acquit. The court also charged that, where the relation of passenger and carrier exists, it is the duty of the carrier to protect the passenger from injuries and wrongs committed either by its own employes and officers or by third persons. The court also charged that it was the duty of the passenger to conduct himself peacefully and quietly, and not to damage the freight, and the mate and officers have the right to use all needful means for its protection.

There are two counts in the declaration, — one upon the contract to carry; the other for violence by its company's servant in performing service in the line of its duty. The pleas are: not guilty, non assumpsit, performance of contract, and that plaintiff first assaulted the mate, etc. The referees recommend the affirmance of the judgment, and defendant excepted.

The first exception is that the referees erred in holding that "a verdict will not be disturbed where there is any evidence to sustain it," as being too broad. The referees do use the language quoted, but they further say there is sufficient evidence to sustain the verdict, and refuse for this reason to disturb the verdict. We think the record sustains their action.

The second exception is that the mate's visit to the deck-room was to remove the deck passengers from the freight there, and this was accomplished before any assault was made by the mate; and it is insisted that the injury was not inflicted in the removal of the plaintiff from...