Wilhelm v. Marietta
| Decision Date | 15 September 1914 |
| Court | West Virginia Supreme Court |
| Parties | Wilhelm v. Parkersburg. Marietta & Interurban Railway Co. |
1. Trial Abstract Instructions.
Though ordinarily not erroneous warranting reversal, an instru: tion should not state abstract legal propositions, unless it eontaii direction for proper application thereof to the facts of the concrete, case. (p. 680).
2. Same Instructions Pleadings and Proof.
Nor should an instruction be given in any case without avermei: and proof upon which to base it. (p. 682).
3. "Same Instructions Applicability-Evidence.
Without proof of incompetency, and under an averment that & common carrier must "use due and proper care and skill about carrying" passengers and charging a breach of such duty, an instruction based thereon, saying defendant's duty required employ ment of competent servants in the conduct of its business, erroneous. Nor is it justified by the additional complaint thai, without any just cause or excuse therefor, the employee, a con ductor, "violently and forcibly grasped" and injured plaintiff, the a passenger on defendant's car. (p. 681).
4. Damages InstructionsInvading Province of JuryExemplary
Damages Carriers.
An instruction saying that if the jury believe from the evidence the servant's act was "malicious, wanton, willful or reckless, then, in addition to the actual damages" plaintiff "suffered for whi.e": she may be entitled to recover, the defendant is liable for exemplajry or punitive damages", is prejudicial, and therefore erroneous, t an infringement upon the discretionary right vested in juries |i o award or refuse exemplary damages or "smart money." (p. 682)1
5. Trial Instructions Conformity to Evidence.
Though for the purpose of ejecting plaintiff's husband the servant may have used more force than was reasonably necessary in causing plaintiff to change her position on the car, but he did not attempt to strike or beat her, an instruction directing a finding for plaintiff, based upon the jury's belief, from the evidence, that the servant "did strike, assault, beat or mistreat her", will be deemed erroneous, because of its apparent tendency to create prejudice against defendant, (p. 682).
6. Carriers Ejection of PassengerTortious Acts of Servant
Liability of Carrier.
The authority conferred by §31, ch. 145, Code, does not relieve the master from liability for the tortious acts of the servant while engaged in actual discharge of official functions, (p. 683).
7. Same Ejection of Passenger JRiglit.
The right of ejection authorized by such statute is not dependent upon the personal safety or reasonable comfort or convenience of other passengers, and an instruction so limiting it is erroneous, (p. 684).
8. Same Ejection of Passengers Evidence.
Upon the right of ejection of passengers for disorderly conduct, it is not improper to show complaint of such conduct by fellow passengers, (p. 685).
Error to Circuit Court, Wood County.
Action by Elizabeth C. Wilhelm against the Parkersburg, Marietta & Interurban Railway Company. Judgment for plaintiff, and defendant brings error.
Reversed and Remanded.
Krebs, Russell & Hiteshew, for plaintiff in error.
J. W. Vandervort and R. E. Bills, for defendant in error.
The plaintiff and her husband were, at the time of the injury for wmich she brought this action, pasengers on a street car line operated by the defendant company. They occupied the same seat, she that part next to the aisle. To facilitate the ejection of the husband, who, it said, was intoxicated and disorderly, the conductor removed or endeavored to remove plaintiff to another seat in the car. Whether he thereby inflicted any injury, or whether his treatment of plaintiff was unnecessarily forcible and violent, are questions as to which the evidence is in irreconciliable conflict. Her intimate friends and companions, then also passengers on the car, discribed his actions as both harsh and violent; others, less partisan and whose opportunity to observe was equally as good, testify to the contrary.
While defendant relies for reversal of the judgment against it, on several assignments of error, those challenging rulings on instructions require most consideration. It contends plaintiff's instructions 1 to 9 inclusive were erroneous. By number 1 the the jury were told, "as a matter of law", without any direction how to apply it, "that it is the duty of a railway company to use the highest degree of care and caution for the safety and security of passengers, while being transported". That, of course, is, as the instruction says, "a matter of law" binding on all passenger carriers. But it is a mere abstract legal proposition, which the jury, without any aid or direction, was to interpret and apply. Such instructions afford the jury an opportunity to draw erroneous conclusions, and to misapply the propositions announced to the facts of the case on trial. Repeatedly this court has criticized instructions of this character. Our reports are full of such criticisms. We cite the following only: Fisher v. Railway Co., 39 W. Ya. 373-Webb v. Packet Co., 43 W. Va. 800; Parker v. Association, 55 W. Va. 134; Oil Co. v. Bartlett, 62 W. Va. 700; Squilache v. Coal & Coke Co., 64 Wr. Va. 337.
But, while defendant was required to use a high degree of care for plaintiff's safety while in its custody as a passenger, an equally imperative duty devolved on it to preserve order and decorum on the car. For this purpose the statute, §31, ch. 145, Code 1913, has conferred upon the officers of common carriers "all the powers of conservators of the peace, and who as such may eject and for that purpose employ all the force reasonably necessary all persons, whether passengers or not, who are guilty of riotous or disorderly conduct; and not only those thus offending, but also those who unlawfully i intervene to prevent the performance of this statutory duty. ' So that, if, as the testimony tended to show, plaintiff's husband was intoxicated and disorderly, the conductor had ample authority to remove him, and to this end to cause plaintiff to change her position in the car, provided only that he exercised no more force than was reasonably necessary to effect the husband's ejection. Under these conditions, defendant's duty did not require it to convey any disorderly or riotous passenger to his destination, though in other respects the passenger may have complied with all essential requirements of the contract of transportation. While it is true defendant's instruction number 4 advised the jury of the conductor's authority under the statute to eject the husband, that did not prevent a misconception of the unconditional and unexplained legal proposition announced in plaintiff's instruction.
Again, the jury was told, by plaintiff's instruction number 2, that it was the duty of the company to employ competent and prudent servants, and, so far as possible, to protect passengers on its cars from unlawful assaults, not only by other passengers but by its servants. While this instruction is also amenable to the same criticism as the first, being merely abstract, there was neither pleading nor proof warranting it. The declaration contained no explicit charge of duty devolving on defendant in the employment of its agents or servants, nor the breach of such duty; and the record is void of any direct evidence of their incompetency. The only averments urged by plaintiff as sufficient to sustain the instruction is the charge in both counts that defendant's duty required it "to use due and proper care and skill in and about carrying the plaintiff", and its failure to use such care and skill, with the further averment that the conductor "without any just cause or excuse violently and forcibly grasped the said plaintiff * * and threw her with great force against a seat on the opposite side of the car", wdiereby "she was greatly bruised, wounded and injured". These averments do not raise an issue as to the conductor's competency, nor give notice of a challenge of his qualification as defendant?s representative; and, if they did raise such issue and impart such notice, there is no proof of any lack of competency on his part, unless we are to infer it from the manner in which he exercised his official functions an inference not justified by any competent authority. Plaintiff can recover only upon proof showing a breach of the master's duty in the employment of competent servants. Straw Board Go. v. Smith, 94 Md. 19; Shaw v. Hollenback, 21 Ky. L. 561, 55 S. j W. 686. The issue here, however, was not as to the conductor's competency, hut rather as to his tortious conduct towards plaintiff, and the probable effect of the instruction was to divert the attention of the jury from the real issue. An instruction on a theory not presented by the pleadings or supported by the evidence is erroneous. Kwnst v. Grafton, 67 W. Va 20; Henry v. Davis, 7 W. Va 715; Barber v. Insurance Co., 16 W. Va 658; Jenkins v. Railroad Co., 61 W. Va. 597; Levy v. Insurance Co., 58 W. Va 546; Railroad Co. v. Forgey, 105 Va, 599; Railroad Co. v. Lee, 106 Va. 32.
Plaintiff's instructions 3 and 4 told the jury that if they believed from the evidence the conductor, while in the discharge of his duties, "without cause, excuse or provocation, did strike, assault, beat or mistreat the plaintiff" while a passenger, by reason whereof she was injured, they should return a verdict in her favor. These instructions contained terms and phrases the tendency of which evidently wras to excite an undue prejudice against the conductor and his employer. For, while some of the witnesses called by plaintiff testified that the conductor forcibly "grasped" and...
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