Southern Pacific Railroad Co. v. Svensden

• Decision Date: 02 April 1910
• Docket Number: Civil 1108
• Citation: 13 Ariz. 111,108 P. 262
• Parties: THE SOUTHERN PACIFIC RAILROAD COMPANY, a Corporation, Defendant and Appellant, v. HANS SVENDSEN, Plaintiff and Appellee
• Court: Arizona Supreme Court

108 P. 262

13 Ariz. 111

THE SOUTHERN PACIFIC RAILROAD COMPANY, a Corporation, Defendant and Appellant, v. HANS SVENDSEN, Plaintiff and Appellee

Civil No. 1108

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the First Judicial District, in and for Pima County. John M. Campbell, Judge. Affirmed.

The facts are stated in the opinion.

Frank Cox and Alfred Franklin, for Appellant.

A railroad company owes trespassers no contract duty. The general rule is that it owes them no duty except not to willfully injure them, and this rule applies to those who are attempting to steal a ride or otherwise trespass upon the company's care. If the plaintiff was a trespasser upon a car of the defendant, the defendant owed him no duty except to refrain from willfully or wantonly injuring him. Banks v. Highland St. Ry., 136 Mass. 485; Planz v. Boston & Albany R.R., 157 Mass. 377, 32 N.E. 356, 17 L.R.A 835; Mugford v. Boston and Maine Ry., 173 Mass. 10 52 N.E. 1078; Massell v. Boston Ry. Co., 191 Mass 491, 78 N.E. 108. A trespasser receiving an injury can recover, if at all, only when the injury was wantonly and willfully inflicted, and when no physical force is used, the conduct of the trainmen must be of such an aggravated character as to impair the mental and physical ability of the injured person to take care of himself and preclude any voluntary action whatsoever on his part.

A. A Worsley, for Appellee.

OPINION

DOE, J.

-- This is an action brought to recover damages for injuries resulting to plaintiff through his forcible ejectment from a moving freight train of defendant, by its train crew. To which defendant interposed a general demurrer, a general denial, and a plea of contributory negligence. The general demurrer being overruled, the cause was tried by a jury, which returned a verdict for plaintiff in the sum of $2,000, in accordance with which verdict judgment was rendered. From the order overruling a motion for a new trial, and from the judgment, defendant prosecutes this appeal.

The overruling of the demurrer, the overruling of defendant's objections to the introduction of evidence on the grounds set up by the demurrer, the refusal of the court to give certain instructions asked by defendant, the giving of others, that the verdict is unsupported by and contrary to the evidence, and the overruling of the motion, constitute the assignments of error.

Had plaintiff been upon the cars of the defendant by virtue of any contractual relation, either express or implied, it was incumbent on him to set it up in his complaint, and, in the absence of such averment, he must be assumed to have been a trespasser whom defendant's conductor and brakeman might lawfully eject, using a reasonable degree of force to accomplish such purpose. In the absence of any contrary showing, the conductor and brakeman will be presumed to have acted within the scope of their employment, and, if they are shown to have exceeded their right to the extent of inflicting wanton or willful injury, the defendant is liable therefor.

While counsel for appellant, in their opening brief, apparently assert that the complaint is insufficient, in that it fails to allege in express terms that the injury complained of was wantonly or willfully inflicted, yet in their reply brief they concede that it is sufficient if facts are pleaded from which wantonness or willfulness is necessarily implied, but insist that the allegations of the complaint are insufficient to show either wantonness or willfulness. The allegations of the complaint in this regard are as follows: "That while plaintiff was riding on said train, and while said train was moving at a high rate of speed, Ben Finn, one of the brakemen on said train, without cause or provocation, acting under orders and instructions from the said conductor of said train, and acting under orders and instructions from said defendant company, assaulted plaintiff, and by threats, intimidations, and force compelled plaintiff to jump from said train to the ground. That when the plaintiff struck the ground he was thrown violently off his feet, striking the ground with his face and then rolled and tumbled with great force." And that in said fall plaintiff was thrown under the wheels of said train while it was in rapid motion, and one of his legs was cut off between the knee and the hip, and various other injuries named inflicted.

This, we think, constitutes a sufficient allegation of ultimate facts to state a cause of action. It was unnecessary for plaintiff to allege or prove youth or inexperience in jumping from moving trains. In the absence of specific allegations with respect thereto, the plaintiff must be presumed to have been a person possessed of neither more nor less than ordinary skill and experience. It is a matter of common knowledge of which the brakeman, by reason of his occupation, could not have been ignorant, that for a person possessed of ordinary skill and experience to jump from a rapidly moving train will naturally and probably result in injury. The alleged acts of the brakeman show, at the least, a reckless disregard for the safety of the plaintiff and an indifference to results such as to establish wantonness and were clearly wanton and willful, as we have defined those words in Conchin v. El Paso & Southwestern Railroad Co., post, p. 259, 108 P. 260.

The fourth and fifth assignments of error are based upon the refusal of the court to give the following instructions asked by appellant:

"I further instruct you, gentlemen, as a matter of law, that from the fact that this plaintiff boarded the moving train of defendant, without any right or authority whatever, he was a trespasser, and that fact alone was contributory negligence. The plaintiff, having wrongfully boarded the defendant company's train, defendant owed him no duty except not to willfully and wantonly injure him; and I instruct you as a matter of law that, if he voluntarily jumped from said train on the direction of the brakeman that he would have to get off, he was guilty of contributory negligence, and, if you believe from the evidence that this is the fact, you will find for the defendant.

"By wanton or willful injury is meant an injury deliberately and intentionally inflicted, or that the person or persons inflicting the injury acted with such utter disregard of the plaintiff's safety that such an intention to injure him may be inferred therefrom."

And the sixth and seventh assignments upon the giving of the following instructions:

"If the jury believe from the evidence that the plaintiff was ordered to jump from said train by the brakeman, and was threatened with violence if he did not so jump, while the train was in motion, and the appearance at the time was such as to lead an ordinarily prudent and careful man to the conclusion that violence would be used by said brakeman of said company on said train, and the brakeman was acting within the general scope of his duties, then the plaintiff was not required to wait until actually forced from said train by violence, and it can make no difference, under this set of circumstances, whether he was ejected by actual force or by threats, if he jumped from said...