Hanson v. European & North American Railway Co. , 62 Me. 84 ( 1873 )

Walton, J.

Passenger carriers are responsible ior the misconduct of their servants. Railroad companies, as well as other carriers of passengers, are responsibk for assaults and batteries committed by their employees upon passengers. Bryant v. Rich, 106 Mass., 180, where the case of Goddard v. Grand Trunk Railway Company, 57 Maine, 202, is cited, and the carrier’s liability, as there declared, approved.

This responsibility of course rests upon the assumption that the battery'cannot be justified. If it can be, no responsibility attaches to any one. If it cannot be, both the servant and the carrier are liable.

If the servant is first assaulted, he may defend himself. If he is resisted in the performance of any duty, he may use force sufficient to overcome the resistance. But the assault being over, or the resistance ended, he cannot pursue and punish the wrong-doer.

The rule applicable to such cases is this, that when a prima, facie case of assault and battery is sought to be justified, it is incumbent upon the one who justifies, to show that no more force was used than the exigencies of the case called for. The force used must be suitable in bind and reasonable in degree, otherwise the justification fails. Rogers v. Waite, 44 Maine, 275; Brown v. Gordon, 1 Gray, 182; Com. v. Clark, 2 Met. 23; 2 Greenl. Ev. § 98.

■ It is the duty of the conductor, and other employees upon a train of cars, to treat the passengers with civility, and to abstain from all unnecessary violence toward them. It is also the duty of passengers to observe the rules and regulations of the company, and to conduct themselves generally so as not to invite uncivil treatment, nor provoke violence.

But it is not true that disobedience to the rules of the company will operate as a license to the employees to maltreat a passenger. If a passenger persists in violating the reasonable rules of the company, after notice of the rules, and a request to him not to act contrary to them, the carrier will have a right to rescind the contract for his conveyance, and refuse to carry him further. • But he will have no right to maltreat him while continuing to perform the contract for his conveyance.

Nor is it true that an uncivil word by a passenger at the beginning of his journey, will justify the carrier’s servants in treating him with insolence to the end of it. Nor is it true that an assault, or resistance to the performance of a duty, will justify the servant in pursuing and punishing the passenger, after the assault or the resistance is over. If he does, he makes the carrier as well as himself, liable for the injury.

If, therefore, it be true, as the defendants contend, that the plaintiff was the aggressor, that he first assaulted the- brakeman and resisted him in the performance of a legitimate duty, it was still a question of fact for the jury to determine, whether the brakeman did not use greater violence than the exigencies of the ease demanded; whether he did not pursue the plaintiff, and inflict the blows upon his head with the iron poker, after the latter had ceased his assault, had ceased his resistance, and was returning to his seat with his back to the brakeman. Under the instructions of the court the jury must have so found, or they could not have returned a verdict for the plaintiff; and in our judgment the evidence fully justified the finding.

Nor are we satisfied that the damages assessed by the jury are so clearly excessive as to justify us in setting aside their verdict. It is true that the damages are large, but it is equally true that the injury was a very severe one.

The right of the jury to give exemplary damages in this class of cases, was first declared in this state in Pike v. Dilling, 48 Maine, 539. The whole doctrine of exemplary damages was again fully and carefully examined in Goddard v. Grand Trunk Railway Co., 57 Maine, 202, and its application to railroad companies for the wilful and malicious acts of their servants, affirmed. It is not now to open question in this State, and will not be further discussed.

"We think the case was submitted to the jury upon correct principles of law, and that their verdict is neither against law, nor the weight of evidence; nor are we satisfied that the damages are so clearly excessive, as to justify us in setting the verdict aside- on that ground. The verdict must therefore stand.

Motion and exceptions overruled.

Appleton, C. J., Gutting, Dickerson and Barrows, JJ., concurred. Peters, J"., having been of counsel, did not sit.