Krantz v. Rio Grande Western Railway Co.

30 L.R.A. 297, 41 P. 717, 12 Utah 104, 41 P.R. 717, 1895 Utah LEXIS 12

Opinion

Smith, J.:

In this cause, appellant, the plaintiff below, brought suit to recover damages on account of alleged personal injuries-inflicted by the respondent’s servants. There are two-counts in the complaint, and upon the trial a verdict was. directed for the respondent, the defendant below, upon the first count, and a verdict returned in favor of the appellant, plaintiff below, in the sum of $4,000 upon the-second count. The record discloses the following facts: Upon the 18th of July, 1892, appellant boarded one of the passenger trains of respondent at the station of Sunny-side, in this territory, and paid his fare to the next station, Lower Crossing, where he alighted from the train. Appellant was 51 years of age, and a traveling merchant by occupation, at the time engaged in traveling over the country, selling spectacles. Lower Crossing is simply a station on the line of railway, and its station house, together with the pump house and section house, were, embraced, practically, within one inclosure. There was a platform extending from the station house to the section house, which was but a few yards distant. In alighting from the train, in pursuit of his business, plaintiff went towards the section house, for the purpose, as he says, to sell his wares. Before he reached the house, the section foreman, then in the employment of the company, who, it appears, was under the impression that the appellant was a spotter and spy of the respondent company, without provocation or words, assaulted him with a shovel, and drove him’ back to the station house, following him. The foreman pulled him out of the station house, and ordered him to leave, saying that he would give him five minutes to get away, and threatening him with death unless he obeyed. The ticket agent was present, and saw the foreman assaulting the appellant outside the station house, and saw them back into the waiting room. Plaintiff, fearing further bodily injury, or worse, started to walk on the track away from the station, and towards Grand Junction, some 30 miles away. He was followed by two unknown persons, designated in the testimony as “tramps,” who assaulted and robbed him after he had proceeded about a quarter of a mile upon his journey, taking his satchel, containing his stock in trade, together with his pocketbook, containing a few dollars in money. Thereupon he returned to the station house. The persons who robbed him returned also, and, it appears, located themselves at or near the pump house, which was opposite and across the tracks from the station house.

Upon his return he entered the station and made com plaint to the ticket agent of what had happened, ánd was talking with him about sending telegrams to Green River station, giving information of the robbery. The section foreman interfered, and directed the ticket agent not to send the telegrams, and immediately after crossed the track to where the two tramps were standing, when all three came over to the station, the foreman in advance, and,, entering the waiting room, the three assaulted the appellant, brutally beating him. Appellant appealed to the agent and the bystanders for assistance, which was finally rendered by a stranger, the ticket agent making no effort to protect him, other than, as he says, to order them all out of the waiting room. He testifies that he knew the1 section foreman, for some reason or other, was bent upon injuring the appellant, and that he did not interfere to protect him because he was sick; 'that he would have had to fight to protect him; that the foreman was subject to his orders in the station house, but would not mind him, because they were at outs; that his authority as station agent would not have been sufficient to protect appellant. Appellant was driven from the station, and walked all night to Price station, a distance of 40 miles, in his sick and disabled condition, where he received attention. The injuries he received were severe and permanent in their nature. The first count in the complaint charges the respondent company with damages for the first assault upon the appellant by the foreman outside of the station house. The second count charges the company for the assault and beating of the appellant by the foreman and the two tramps in the waiting room after he had been robbed. The district judge charged the jury that, in order to find for the plaintiff upon the second count, they must find “that this man was absolutely a passenger of the defendant company; that the relation of passenger and carrier existed between them at the time of the assault. There is a correlative duty existing on both the.passenger and carrier: the passenger to pay, or offer to pay, his fare; if it is accepted, he then becomes a passenger; then the duty of the railroad company is to protect, by all means within their power, during his transportation, and while he remains in the station house in that character, awaiting the coming of a train, or the departure of a train, as the case may be. That relationship existing, it was the duty of the railroad company to protect him from assaults, not only from its own agents and servants, but from other persons, if within their power; more especially from their servants and agents. That correlative duty was imposed on the railroad company, if you find, I say, gentlemen, that he was a pas-señger at that time; and, to- become a passenger, he must have paid his fare, or have offered and tendered to pay his fare.” A new trial was granted upon the second count, and the plaintiff appeals from the judgment against him on the first count, and from the order granting a new trial.

We are of the opinion that when the plaintiff alighted from the train at Lower Crossing, and made his way towards the section house, for the purpose of engaging in his regular business,, his relation as passenger to the respondent company had ceased, and that it no longer ■owed to him any duty as a passenger; that the acts of the section foreman were not within the scope of his duties or employment, and, not being suffered or permitted by the respondent company, the appellant cannot recover from the company. We do not think that the general rule which permits a passenger a reasonable time in w'hich to depart from the company’s premises after alighting from his train has any application, and therefore affirm the judgment upon this appeal upon the second count.

In support of the order granting a new trial, it is urged by respondent's counsel that a motion for a new trial is addressed to the discretion of the trial court, and that, in some particulars, the evidence being conflicting, that court should not disturb the order. It is further claimed that, in order to entitle appellant to the protection of the respondent company, he must not only have intended to .become a passenger, but must also have announced such intention, and his proposition must have been accepted by or on behalf of the company. This view was adopted by the trial court, and the case submitted to the jury upon this theory, and this, alone. It is quite evident from the entire record that the new trial was granted because, in the opinion of the trial judge, the appellant was not a passenger or intending passenger within the rule declared in its charge. In other words, the new trial was granted because, in the opinion of the court, the vex-dict was contrary to the law, and not because of any conflict in the evidence. In the view- we take, we ai’e of the opinion that it is unnecessary to determine here when or how the relation of passenger begins. We think the case turns upon another rule of law.

It appears from the record that the section house was situated in a desert country, sparsely settled, and with habitations few and far between; that the only method of transportation to and from Lower Crossing was by rail, and the station house was kept open for the reception of the public at large, as well as passengers, ordinarily, during all hours of the. day. It is a matter of common knowledge, of which the court may take notice, that these railroad station houses scattered along the line of railroads in a sparsely-settled country, such as the locality here is proven to be, are thrown open for the use of the public, which, by invitation of the company, is permitted to use them at all times, before and after the arrival and depart- nre of trains; that there was and is an implied invitation to all persons intending to avail themselves of the railroad service to enter and occupy the premises, and at any time, in the absence of reasonable regulations to the contrary, made by the company. And the offer to pay fare, or the •announcement of the intention to pay fare, and the acceptance by or on behalf of the company, is not necessary to be made, by a person entering the station with such or •other legitimate purpose, to entitle him to protection against violence by the company’s servants. This case does not even depend upon this question: When the appellant was assaulted and beaten in the waiting room of the station, the, company itself was present, in the person of the ticket agent in charge, who was its vice principal, and the injuries inflicted upon the appellant by one servant of a ■company, aided by strangers, in the presence of and under the very eye of the vice principal, who tamely acquiesced, and failed to exercise his authority for the protection of the appellant, were inflicted by the company itself. The agent should hav'e protected appellant, or, at least, should Pave made an earnest effort to do so. Railway Co. v. Hinds, 53 Pa. St. 512; Railroad Co. v. Burke, 53 Miss. 227. We are not prepared to sanction the proposition that a man in the situation of the appellant, driven by the unprovoked and brutal violence of the company’s own servants to seek the protection of its station house and waiting room in charge of its agent, has no recourse against the company for the wilful and malicious acts of its employees, under circumstances which make them the acts of the company. We think such contention is not only against public policy, but the settled rules of law. Upon the evidence, then, the verdict was clearly right, and, in our judgment, the amount was not excessive. The district judge erred in his construction of the law, and the case was submitted to the jury upon a wrong .theory.

We are of the opinion from this record that the appellant is entitled to recover from the railroad company, and are not disposed, and do not find it necessary, to put him to the expense and trouble of a new trial. “Why should a verdict be set aside which is correct, because erroneous-principles of law have been announced by the court? The-object of a jury trial being to do justice between the parties, the annulment.of the verdict, where this has been accomplished, on account of mistakes and misdirections on the part of the court, would, seem akin to the criticism which censured a celebrated commander because he persisted in winning victories in violation of the rule of strategy.” Railroad Co. v. Burke, 53 Miss. 227. The judgment upon the verdict as to the first count is affirmed,, and the order granting a new trial as to the second count, is reversed, and the original judgment upon the verdict-reinstated as of April 28, 1894, the date of the original entry. As the two appeals were submitted upon practically one record, and briefed together, the costs of printing-briefs and record will be taxed in the respective appeals as-apportioned by the clerk.

Bartoh and, KiNG, JJ., concur in the judgment.