Williams v. Gill

• Decision Date: 12 April 1898
• Citation: Williams v. Gill, 122 N.C. 967, 29 S.E. 879 (N.C. 1898)
• Parties: WILLIAMS . v. GILL.
• Court: North Carolina Supreme Court

29 S.E. 879

122 N.C. 967

WILLIAMS .

v.GILL.

Supreme Court of North Carolina.

April 12, 1898.

Carriers — Issues — Discretion of Court—Assault on Passenger bt Employe—Liability of Carrier—Instructions — Insolvency—Evidence.

1. The framing of issues is within the discretion of the court, and will not he reviewed, unless prejudicial to the party excepting.

2. In an action for an assault committed by an employe on a passenger on defendant's train, it is not prejudicial to defendant to change the issue, "Did the defendant, through the conductor and other agents or servants, unlawfully assault and beat the plaintiff?" tendered by plaintiff, by substituting "or" in place of "and, " where the complaint alleged that plaintiff was assaulted by the conductor and another person in defendant's employment.

3. The fact that defendant's brakeman struck plaintiff instantaneously upon plaintiff applying to him a vile epithet, and before the conductor could interfere, will not relieve the carrier from liability.

4. Where the relation of carrier and passenger existed, the conduct of an employ? in inflicting violence on a passenger, although outside the scope of his authority, and willful and malicious, subjects the carrier to liability as fully as though it encouraged the act.

5. Where no part of plaintiff's evidence is favorable to defendant, it is not error to instruct the jury that, if they believe defendant's testimony, they should answer the issue against it.

6. The fact that a railroad corporation is in a receiver's hands furnishes no evidence of its insolvency.

Appeal from superior court, Rockingham county; Starbuck, Judge.

Action by W. P. Williams against John Gill, as receiver of the Cape Fear & Yadkin Valley Railroad Company, to recover for an assault committed by an employe of defendant. From a judgment for plaintiff, defendant appeals. Affirmed.

J. T. Morehead, for appellant.

C. O. McMichael and Scott & Reid, for appellee.

MONTGOMERY, J. The plaintiff, In his complaint, alleged that, while he was a passenger on the defendant's train, he was assaulted by the conductor and another person who was in the employment of the company in the conducting of the train. He also alleged that after the assault he was ejected from the train by the conductor and other of the agents and employes of the company. These allegations were denied in the answer. At the conclusion of the evidence, in which It was disclosed that the assault was made by a brakeman of the company, the conductor having taken no part in It, the court changed the first issue by substituting the disjunctive "or" for the conjunctive "and, " as between the conductor and servants of the company. The first issue, as originally framed, was In the following language: "Did the defendant, through the conductor and other agents or servants, unlawfully assault and beat the plaintiff?" The defendant made his first exception to the change in the issue. His honor committed no error in making the change. The framing of the issues is a matter within the sound discretion of the court, and, in cases where exceptions are made to the issues, the party excepting must show that the exercise of that discretion operated to his injury. Pickett v. Railroad Co., 117 N. C. 616, 23 S. E. 264. The rule presupposes that such issues as are submitted to the jury are raised by the pleadings. Emery v. Railroad Co., 102 N. C. 209, 9 S. E. 139. The issue, in the form in which it was framed, was raised by the pleadings. It was not necessary, to make the company liable, that the assault upon the plaintiff should have been a joint assault by the conductor and the brakeman. The assault of either, as alleged in the complaint and denied in the answer, raised the issue in the disjunctive form in which it was framed.

The defendant asked the court to instruct the jury that, as the uncontradicted testimony of the plaintiff showed that the brake-man struck the plaintiff instantaneously with the applying to the brakeman by the plaintiff of a vile epithet, the brakeman was therefore not acting within the scope of his authority, and the defendant would not be held responsible for the brakeman's act, and that the blow was so sudden that the conductor could not have prevented it, and the defendant would not be responsible. His honor was right in declining to give the instruction. The brakeman was engaged in the service of the company on the occasion,...