Rowell v. Boston & M. R. Co.

• Decision Date: 26 July 1895
• Citation: 68 N.H. 358,44 A. 488
• Parties: ROWELL v. BOSTON & M. R. CO.
• Court: New Hampshire Supreme Court

44 A. 488

68 N.H. 358

ROWELL

v. BOSTON & M. R. CO.

Supreme Court of New Hampshire. Sullivan.

July 26, 1895.

Exceptions from Sullivan county.

Trespass for assault and battery by Franklin P. Rowell against the Boston & Maine Railroad Company. From rulings denying defendant's motions for a nonsuit and for a verdict in its favor, it excepts. Exceptions overruled.

June 22, 1894, a freight train of the defendant arrived at the station in Newport, in charge of Conductor Woodbury. The plaintiff, expecting some freight on this train, came to the railroad station to get it. He was informed by the station agent that there was no freight for him, but he entered one of the cars of this train where the conductor was unloading freight, and made an inquiry of him about the freight. The conductor requested him to leave the car, and then ejected him, or attempted to eject him, from the car, whereby the plaintiff claims he was assaulted and injured. The plaintiff testified: "I stepped into the way car to see if there was any grass seed for me. Woodbury, the conductor, asked if I had anything there. I said I did not know. He said (with an oath), 'Get out of here.' He caught me, tore my clothes, and forced me to the side of the car. He did not get me out. I resisted. He twitched me around considerable, and tore my jumper. He did not lay out strength enough to put me out. * * * He slapped me in the face. I was hurt more in mind than in body. * * * I was struck as hard as be could with his open hand. The prints of his fingers were on my cheek when I went to Bowers' office to get the writ made." The plaintiff's son testified: "Woodbury grabbed hold of him, tore his coat, and slapped him beside the face." The defendant moved for a nonsuit because: (1) "On the plaintiff's own testimony, Woodbury used no more force than was necessary; (2) it was only a simple assault by Woodbury, not in the exercise of his duty." The defendant also moved that a verdict be directed for it upon the ground "that the plaintiff says Woodbury exhausted his strength on him, and put him down, and he [plaintiff] went out." Both motions were denied, subject to exception. The jury disagreed.

Albert S. Wait and William A. J. Giles, for plaintiff.

Oliver E. Branch and William H. Sawyer, for defendant.

WALLACE, J. The question raised here is whether the defendant's motions for a nonsuit and for a verdict in its favor should have been granted. If the plaintiff, when the conductor attempted to eject him from the freight car, was there without right, and was a trespasser, yet he had a right to have the case submitted to a jury, if there was any evidence from which it was competent for them to find that the act of the defendant's servant, in ejecting, or...