Wabash v. Henry J. Rector.

• Decision Date: 28 September 1882
• Citation: 1882 WL 10410,104 Ill. 296
• Parties: WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.HENRY J. RECTOR.
• Court: Illinois Supreme Court

104 Ill. 296

1882 WL 10410 (Ill.)

WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY

v.HENRY J. RECTOR.

Supreme Court of Illinois.

Filed at Springfield Sept. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Fulton county; the Hon. S. P. SHOPE, Judge, presiding.

Mr. F. T. HUGHES, for the appellant:

The facts amount to such culpable and willful negligence on the part of the plaintiff, as will preclude a recovery on account of contributory negligence. The statute makes it a criminal offence for any person to climb, jump, cling to or attach himself to a car in motion. Field on Damages, 167; Chicago and Northwestern Ry. Co. v. Scates, 90 Ill. 586; Railroad Co. v. Aspell,23 Pa. St. 147; Nichols v. Railway Co. 106 Mass. 463; Harvey v. Railway Co. 116 Id. 269; Illinois Central R. R. Co. v. Able, 59 Ill. 131; Ohio and Mississippi R. R. Co. v. Schiebe, 44 Id. 460; Illinois Central R. R. Co. v. Slatten, 54 Id. 133.

The appellee was doing an unlawful act. His injury resulted from that act, and if so, he can not recover. Wood on Master and Servant, sec. 319; Harris v. Hatfield, 71 Ill. 310; Bosworth v. Swanson, 10 Metc. 363; Heland v. Lowell, 3 Allen, 408; Illinois Central R. R. Co. v. Hetherington, 83 Ill. 510.

If plaintiff was injured by the servant of appellant, it was outside of the employment of the servant. Middleton v. Fowler, Salk. 282; Roe v. Birkenhead R. R. Co. 7 Eng. L. & Eq. 546; Story on Agency, sec. 456; Angell on Carriers, sec. 604; Hilliard on Torts, 432; Cooley on Torts, 533; Wood's Master and Servant, 555; 2 Kent's Commentaries, 260; Thompson on Negligence, 885; Pierce on Railroads, 279; Bryant v. Rich, 106 Mass. 180; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110.

The court erred in giving the tenth instruction, directing the jury to assess vindictive damages. McKinley v. Chicago and Northwestern Ry. Co. 44 Iowa, 321; Crocker v. Chicago and Northwestern Ry. Co. 36 Wis. 657; Pierce on Railroads, 305, 306; Field on Damages, 96; McKeen v. Citizens' Ry. Co. 40 Mo. 88; Goddard v. Grand Trunk R. R. Co. 57 Me. 202.

To hold the principal, who has done or authorized no wrong, liable for exemplary damages, is against the general principles of the law of exemplary damages. Wood's Master and Servant, 598; Cooley on Torts, 127; Shearman & Redfield on Negligence, sec. 601; Caldwell v. New Jersey Steamboat Co. 47 N. Y. 282; Hagan v. Providence R. R. Co. 3 R. I. 88; Turner v. North B. R. R. Co. 34 Cal. 594; Ken. and G. R. R. Co. v. Dills, 4 Bush, 593.

For all such acts as are outside the employment, and not ratified, only actual damages can be allowed. Crocker v. Chicago and Northwestern Ry. Co. 36 Wis. 657; Chicago and Rock Island R. R. Co. v. McKean, 40 Ill. 218.

Messrs. GRAY & WAGGONER, and Mr. L. W. JAMES, for the appellee:

One who procures a ticket for a passage on the company's cars, is to be regarded as a passenger from the time he purchases the same, and it is the duty of the company to provide him a safe passage to his seat in the cars. Redfield on Carriers, 269, 352.

To all legal intent and purpose the conductor in charge of a train is, for the time being at least, the company itself, and said company is fully responsible for all his acts and doings within the scope of his power, express or implied. St. Louis, Alton and Chicago Ry. Co. v. Dalby, 19 Ill. 353; Toledo, Wabash and Western Ry. Co. v. Harmon, 47 Id. 299; Illinois Central R. R. Co. v. Reed, 37 Id. 508; Northwestern R. R. Co. v. Hack, 66 Id. 239; Chicago, Burlington and Quincy R. R. Co. v. Dickson, 63 Id. 157; Noble v. Cunningham, 74 Id. 51; Chicago, Burlington and Quincy R. R. Co. v. Bryan, 90 Id. 126; Chicago and Northwestern R. R. Co. v. Moranda, 93 Id. 303; Goddard v. G. T. R. R. Co. 57 Maine, 202; A. and G. W. R. R. Co. v. Dunn, 19 Ohio, 162; Hanson v. N. A. R. R. Co. 57 Maine, 84; 1 American Railway Cases, Smith & Bates' notes, 127; Sleeth v. Wilson, 9 Carr. & Payne, 607; Bryant v. Rich, 106 Mass. 180; Coleman v. N. Y. and N. H. R. R. Co. 106 Id. 160; Brokaw v. N. J. R. R. Co. 3 Vroom, (N. J.) 328; Kline v. C. P. R. R. Co. 37 Cal. 327; Passenger R. R. Co. v. Young, 21 Ohio St. 518; Sherley v. Billings, 8 Bush, 147.

The act of the agent of appellant was wanton, willful and malicious, and highly oppressive, and in such cases exemplary damages should be given. Illinois Central R. R. Co. v. Parks, 88 Ill. 375; Chicago, Burlington and Quincy R. R. Co. v. Bogue, 1 Bradw. 473; Same v. Bryan, 90 Ill. 126; Hawk v. Ridgeway, 33 Id. 473; City of Chicago v. Martin, 49 Id. 245; Illinois Central R. R. Co. v. Hammer, 72 Id. 348; Toledo, Peoria and Warsaw Ry. Co. v. Patterson, 63 Id. 304; Atlantic and Great Western R. R. Co. v. Dunn, 19 Ohio St. 162; Pittsburg, A. and M. R. R. Co. v. Donahue,70 Pa. St. 119.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

This action was brought by Henry J. Rector, against the Wabash, St. Louis and Pacific Railway Company, and Theodore F. Kent, to recover for personal injuries. No service of process was had on Kent, and the action proceeded against the railway company alone. The facts necessary to an understanding of the questions of law to be considered may be briefly stated. Plaintiff desired to become a passenger on defendant's cars from Smithfield to Canton, and for that purpose purchased a ticket at the former station that would entitle him to become a passenger on defendant's road. It appears plaintiff delayed attempting to enter the cars until after the train was in motion, although plenty of time was allowed for that purpose, had he desired to do so. By the time he did attempt to get aboard, the train had acquired considerable speed. As the end of the rear car came opposite plaintiff he caught hold of the rear guard-rail and stepped with one or both feet on the bottom step, and swung around to the rear of the car. The evidence tends to show a collision occurred between plaintiff and the conductor, who was attempting to board the train at the same time and at the same platform. In an effort to recover himself plaintiff swung back, and with his right hand took hold on the other guard rail, and it was while he was in that position, it is alleged he was wantonly and willfully assaulted by the conductor. The injuries sustained by plaintiff were very serious indeed, and no doubt of a permanent character. On the trial in the circuit court the jury returned a verdict for plaintiff in the sum of $14,000. After a remittitur of $4000 was entered, the court overruled defendant's motion for a new trial, and rendered judgment on the verdict for $10,000. That judgment was affirmed in the Appellate Court, and defendant brings the case to this court on appeal.

With the facts of the case, further than they may be necessary to an understanding of the questions of law raised, this court will not concern itself. They have been ascertained by the Appellate Court, whence this cause comes, and that finding is, of course, under the statute, conclusive on this court. Some further reference to the facts may be necessary to render the legal questions discussed intelligible in their application to the case. As has been seen, plaintiff purchased a ticket on defendant's railway between two stations, and that fact created the relation of carrier and passenger, and the law imposed duties arising out of that relation, both on the carrier and the passenger. It is the duty of every railroad company to cause its passenger trains to stop at each station advertised as a place for receiving and discharging passengers, a sufficient length of time to receive and let off passengers with safety, and to provide a reasonably safe way of reaching and departing from their cars at all usual stations, and it is the duty of passengers to exercise ordinary care for their safety on attempting to take passage on railway cars. These respective duties, as well as all others that tend to the security of passengers, neither party ought to omit.

No complaint is made in this case that defendant did not cause its train to stop at the station a sufficient length of time to allow all passengers that might wish to do so to get off or on its cars with safety. It is an admitted fact, plaintiff, although holding a ticket entitling him to passage, did not attempt to get aboard defendant's cars until the same began to move away from the station. After the cars were in motion, and had acquired considerable speed, plaintiff undertook to get on the cars by catching hold of the railing of the rear car, and while he was holding to it with both hands as well as he could, he was injured by a violent assault made by the conductor, and was otherwise injured. It is at this point in the case the first serious error occurs in the action of the trial court in giving instructions for plaintiff. The first of the series is as follows: “If the jury believe, from the evidence, that the plaintiff, under all the circumstances, in attempting to board defendant's train, if he so attempted, acted as a reasonably prudent person would have done under like circumstances, without negligence, and...