Wiles v. Northern P. Ry. Co.

• Decision Date: 21 December 1911
• Citation: 66 Wash. 337,119 P. 810
• Court: Washington Supreme Court
• Parties: WILES v. NORTHERN PAC. RY. CO.

119 P. 810

66 Wash. 337

WILES v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

December 21, 1911

Department 2. Appeal from Superior Court, Snohomish County; W. W. Black Judge.

Action by Evan Wiles against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

C. H. Winders, for appellant.

M. J McGuinness and Robert McMurchie, for respondent.

ELLIS J.

Action to recover damages for an alleged wrongful ejectment of respondent from a passenger train of appellant on December 1 1909. The jury returned a verdict in respondent's favor for $523.93. Appellant's motion for new trial was overruled, and a judgment for that amount was entered against the appellant. From that judgment this appeal was prosecuted.

It is conceded that the respondent was a passenger on the train in question, and had paid his fare in full for carriage from Snohomish to Maltby, and that he was ejected from the train by the conductor and brakeman before the train had reached Maltby. By a careful examination of the evidence, we are satisfied that on every other material question of fact there was a substantial, and in the main a sharp, conflict in the evidence. If, therefore, the case was submitted to the jury upon proper instructions, the verdict is conclusive of the facts. It was practically admitted by counsel in argument that there was such conflict in the evidence as to require its submission to the jury, but it is urged that the appellant did not have a fair trial for reasons as follows (1) Error of the court placing appellant's witnesses under the rule of exclusion after respondent's evidence in chief was in; (2) error in denying appellant's challenge to the sufficiency of the evidence; (3) error in giving certain instructions and in refusing to give others requested; (4) error in overruling appellant's motion for a new trial.

1. Counsel contends that the trial court abused its discretion in permitting attorney for respondent in the presence of the jury to demand that 'the railroad's witnesses be excluded.' The record, however, shows that the request was not couched in these or other objectionable terms. It was as follows: 'At this time the plaintiff asks that the witnesses for the defendant be put under the rule.' The request was granted, and, upon counsel for appellant objecting to the order, the court stated: 'I have made it my universal custom to enforce the rule whenever asked.' The court's remark indicated to the jury that, if the same request had been made as to respondent's witnesses, it would have been granted. The placing of witnesses under the rule is a matter within the discretion of the trial court. 21 Ency. of Pl. & Pr. p. 983. While it is doubtless the better practice not to enforce the rule except on seasonable application, we cannot say, in view of the reason given by the court, that there was such an abuse of discretion as could have been prejudicial to the appellant.

2. When all of the evidence was in, humiliation, shame, and disgrace even sustain any verdict for respondent. The rule on such a motion is the same as that upon a motion for nonsuit. Where there is competent and substantial evidence to sustain the plaintiff's cause, its credibility and sufficiency are for the jury. The motion was properly denied. Spokane & Idaho L. Co. v. Loy, 21 Wash. 501-514, 58 P. 672, 60 P. 1119; Brookman v. State Ins. Co. of Oregon, 18 Wash. 308, 51 P. 395; Rinear v. Skinner, 20 Wash. 541, 56 P. 24; 38 Cyc. p. 1565 et seq.

3. The evidence was sharply conflicting as to whether or not the respondent was offensively drunk, and as to whether prior to the ejection he used profane and obscene language; thus forfeiting his rights as a passenger. It was also in direct conflict as to whether he was ejected in a swamp where the water came up to the railroad track, so that he either fell or was thrown into water about six feet deep, or whether the expulsion took place at a point known as Fiddler's Bluff, where the ground was dry. The appellant urged that the instructions contain fatal error as to the elements of damage in view of this evidence. Since the instructions must be construed together in order to determine their reasonable effect, we quote from those applicable to this phase of the case rather fully, lettering them for convenience, as follows:

(a) 'While the railroad company has a right to eject intoxicated, boisterous, or disorderly persons from its train, such ejection must be done in a reasonable manner, at a proper time and place, and considering his condition, without exposing him to harm or imperiling his life, and, if you should find from the evidence in this case that at the point where the plaintiff was ejected from the train of the defendant, if he was ejected, the ground was submerged with flood waters, and that plaintiff was thrown by defendant into water approximately six feet in depth, then I instruct you that the plaintiff, whether wrongfully ejected or not, is entitled to recover whatever damages he may have sustained by reason of having been thrown into the water, if he was thrown into the water, by the agents of the defendant.'

(b) 'You are further instructed that if you find, under the instructions heretofore given you, that the plaintiff was guilty of such disorderly and lawless behavior, upon the car in which he was traveling, as to justify the conductor in ejecting him, and that he was ejected at a place, although away from a station, where he could reasonably take care of himself, that then the defendant company would not be liable to him for any injuries that he sustained at any subsequent time endeavoring to reach his point of destination or in attempting to return to Snohomish.'

(c) 'The instructions given to the jury are and constitute one connected body and series, and should be so regarded and treated by the jury; that is to say, you should apply them as a whole to the facts--that is, consider all of the instructions together as they may relate to the facts as shown by the evidence.'

(d) 'If you should find, under the evidence and the rules of law given to you, that the plaintiff is entitled to recover, it will be your duty to assess the amount of damages which, in your judgment, he should recover. In estimating this amount you may take into consideration any expenses actually incurred, the loss of time occasioned by the immediate effect of the injuries, and the physical and mental suffering caused by the injuries. You may, in this respect, consider what, if any, compensation shall be allowed to the plaintiff for the humiliation, shame and disgrace from having been ejected from the train of the defendant if such was done.'

(e) 'The court instructs the jury that if they find from the evidence that the defendant carrier was guilty of wrongfully ejecting the plaintiff from its train of cars that the plaintiff is not limited in his recovery to the actual money lost by him by reason of such ejection but he may recover damages for the humiliation and mental suffering which such ejectment may have caused him.'

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