Schwenke v. Union Depot & R. Co.

• Decision Date: 08 March 1889
• Citation: 21 P. 43,12 Colo. 341
• Court: Colorado Supreme Court
• Parties: SCHWENKE v. UNION DEPOT & R. CO. et al.

21 P. 43

12 Colo. 341

SCHWENKE v. UNION DEPOT & R. CO. et al.

Supreme Court of Colorado

March 8, 1889

Appeal from superior court of Denver.

This action was brought to recover damages for an assault and battery alleged to have been committed upon the appellant by the appellee McLean. The alleged connection of the appellee the Union Depot & Railroad Company with the transaction is set forth in the fifth paragraph of plaintiff's complaint, in the following language, to-wit: '(5) That the said defendant John W. McLean was then and there in the employ of the said defendant company as a watchman, and committed the wrongs and grievances hereinafter set forth at the instigation and under the directions and commands of, and with the full knowledge of, the said defendant the Union Depot & Railroad Company.' The appellees answered separately; the company, in its answer, denying all the allegations of the complaint, except those contained in the fifth paragraph thereof. The appellee McLean, in addition to denying all the material allegations of the complaint justifies under the claim that he was, at the time, both a deputy-sheriff of the county, and a member of the police force of the city of Denver, and that the acts complained of were committed by him in the discharge of his duties as an officer, in arresting the appellant for a threatened breach of the peace. The new matter in the answer was denied in the replication. The pleading and evidence also show that the appellant claimed to be the owner of certain lots adjoining the property upon which the Union depot building in the city Denver is located, and that his only means of ingress and egress to and from said lots was a certain alley, which alley, prior to the time of the alleged assault and battery the authorities of the city of Denver had attempted to vacate and appropriate to the use of the defendant company; and that, for the better use of its premises, the company had constructed a high board fence next to the appellant's lots, but upon the territory formerly included in said alley. Trouble arose between the defendants and plaintiff in reference to this fence, and upon the 24th day of June, A. D 1884, the plaintiff sent an employe to remove said fence, who removed the same by sawing off from below the posts, and causing the fence to fall in upon appellant's lots appellant standing by at the time, directing the work, and keeping a lookout for the company's watchman, the appellee McLean, who, upon the falling in of the fence, reshed in upon the appellant's premises and arrested him; which said arrest, and the subsequent treatment of the appellant by the defendants while so under arrest, are the acts here complained of. At the trial, upon the conclusion of the evidence for the plaintiff, the case was taken from the jury by the court, and a judgment of nonsuit entered. To reverse this judgment the plaintiff brings the case here by appeal.

W. B. Felker and J. A. Bentley, for appellant.

Teller & Orahood, for appellee.

HOYT, J., ( after stating the facts as above.)

Did the court err in taking the case from the jury, and entering a judgment of nonsuit? An answer to this question involves an examination of the evidence introduced upon the trial. The appellant, who was a witness in his own behalf, testified inter alia, that at the time he was arrested he demanded of McLean the production of a warrant, and that McLean first told him he had a warrant for his arrest, but afterwards told him he had none. The witness also testified that some one knocked him down, and that McLean got upon him with his knees on his breast, and that when he (witness) get up he was all black and blue. Appellant further testified that he was so injured in the chest by McLean at the time as to cause him to spit blood, and that he had not recovered from such injuries as the time of the trial, more than a year thereafter. Upon cross-examination, witness testified: 'I had a pistol in my back pants...