Atchison, Topeka & Santa Fe Railroad v. Henry

55 Kan. 715

• Court: Supreme Court of Kansas
• Decided: July 15, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J. :

At the trial the plaintiff below, W. T. Henry, relied upon two grounds of recovery: One for the alleged assault made upon him by the brakeman while Henry was a passenger on the train of the railroad company, and the other for the unlawful arrest alleged to have been made at the instance of the railroad company while he was a passenger upon the train, and his illegal imprisonment for about 12 hours in the jail of Franklin county. Henry was a farmer and stock-shipper, who made a shipment of cattle from Wellington to Kansas City in January, 1890, and who, in consideration of the shipment, received a ticket or stock-pass entitling him not only to accompany the cattle to Kansas City, but to a return passage from that place to Wellington. On the return trip he was unable to find the stock-pass, and was required by the conductor to pay a cash fare. Some difficulty arose between him and the conductor concerning the collection of the fare, in which it was contended by the employees of the company that Henry became profane, violent and abusive, and threatened violence to the conductor. It is claimed that the threats were communicated to the conductor, who, when passing through the train accompanied by a brakeman, found Henry with an open knife in his hand in a threatening attitude ; that the brakeman approached him and demanded that he should throw the knife down, but Henry refused, when the brakeman struck him three times upon the head with a lantern. The theory of the railroad company was that Henry was drunk, abusive, and violent; that he had become enraged because of the collection of his fare, and had threatened the lives of the employees of the company, and that with an open knife he was endeavoring to carry out his threats at the time he was attacked by the brakeman, and that therefore the conductor and brakeman were justified in committing the assault upon Henry, and inflicting upon him the punishment which they did. On the other hand, Henry claims that he was not drunk nor disorderly ; that while he complained of the collection of the fare and the failure to return it after his stock-pass had been found, he made no threats against the conductor nor any attempt to attack him with a knife or in any other manner. He claimed that he was using his knife to cut a chew from a plug of tobacco which he held in his hand. The jury haye specially found, upon conflicting evidence, that while Henry used some profane language on the train, he was not drunk or boisterous ; that he made no threats of doing personal injury or violence to the conductor upon either of the cars on which he rode. There was a further, finding that the brakeman struck Henry twice after he had dropped the knife.

i-Sawiity?1'-According to the testimony which was accepted by the jury the action of the brakeman in assaulting Henry was a gross violation of the duty of the railroad company toward a passenger. . As the relation of carrier and passenger existed he was entitled to the highest degree of care and protection against violence or interference by others so long as he conducted himself in a proper manner. If, through the negligence of the com- • pany in affording him the care and protection to which he -was entitled, the passenger had suffered an injury the company would be liable, and certainly the liability is no less where the injury is intentionally inflicted by an. employee of the company who was required to exercise care and protection toward the passenger. It is true, if Henry was drunk and disorderly and his conduct such as to render his presence offensive or dangerous, they would have been justified in excluding him from the train; and it is also true, as contended by the company, that the brakeman and conductor might repress acts of violence on his part, and under certain circumstances defend themselves or repel a threatened attack. The finding of the jury, however, makes the brakeman the aggressor, and his attack upon the passenger unjustifiable. ( Stewart v. Railroad Co., 90 N. Y. 588; Ray, Neg. Imp. Dut., §§106, 107.)

a. illegal arrest of passenger. It is next contended that the company is not liable for the illegal arrest and false imprisoment of Henry. The arrest was made without a warrant, and the imprisonment continued for about 12 hours in the county jail of Franklin county. It occurred about one-half an hour after the termination of the difficulty on the train, at a time when Henry was quiet and orderly. 'When'the train reached Ottawa, the conductor reported the occurrence of the difficulty to a superintendent, who advised that Henry should be taken from the train. The conductor inquired for an officer, and when one was found, they went together into the train where the conductor pointed out Henry, who was at once arrested by the officer and taken to prison. Under these circumstances, there can be but little doubt that the conductor procured the false arrest to be made while in the line of his employment, and at a time when the relation of passenger and carrier existed between the company and Henry. It is well settled that when one in charge of a train, and engaged in the business which has been intrusted to him by the company, causes the arrest of a passenger, the company for which he is acting cannot escape liability. According to the testimony,. which the jury believed, Henry was arrested at midnight when he was quietly seated in a car ; and without process or any information as to the cause of his arrest, he was hurried from the train and placed in jail, where he was searched and shut up until about-noon the next day. 'The action of the conductor, who-must be held to have been acting for the company, was clearly a breach of the contract between the carrier and the passenger, which required that Henry should.be carried in safety to his destination and protected from interference by strangers or against the misconduct of the company's servants. Where the relation of carrier and passenger exists, it is held that no matter what the motive is which causes a servant of the carrier to commit an unlawful act, or to wrongfully inflict an injury upon a passenger, the carrier is responsible for the act and its natural and legitimate consequences. (Dwinelle v. Railroad Co., 120 N.Y. 122 ; Hamel v. Ferry Co., 6 N.Y. Sup. 102 ; Palmeri v. Railroad Co., 53 Am. & Eng. Rld. Cases, 56 ; Gillingham v. Railroad Co., 35 W. Va. 588 ; Ray, Neg. Imp. Dut., § 109.)

There is some testimony tending to show that the officer who made the arrest was employed by and recéived compensation from the railroad company. Some testimony of an objectionable nature in regard to his authority, as well as in regard to the authority of the superintendent, was received, but in view of the conclusion that has been reached that the conductor, acting in the line of his employment, caused the arrest to be made, the objectionable testimony with respect to the authority of the police officer and of the superintendent becomes immaterial.

3- f^fges? The final complaint is that the damages awarded by the jury are excessive, but the view' which the jury has taken of the facts would justify the allowance of punitive damages against the company, and, looking at all the circumstances of the case, we cannot say that the award of $3,000 is so excessive as to indicate passion or prejudice in the jury or justify the court in disturbing the verdict.

The judgment of the district court will be affirmed.

All the Justices concurring.