Bass v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co. ( 1905 )

Hooker, J.

The plaintiff, a young man residing at the time at Kalamazoo, purchased an excursion ticket to Benton Harbor over the Michigan Central and defendant’s' roads. On the return trip the plaintiff rode in the smoking car and a number of passengers in that coach were riotous and disorderly, to a degree that merited severe measures in suppressing their disorder. An altercation with the conductor resulted, and, while the train stopped at the last station but one on the trip, one of the young men procured an ax helve, and it was carried on the car to Niles, where the plaintiff and other young men were to change cars, having to walk a distance of several blocks to take the Michigan Central train. The conductor was warned of the intention of the young men to attack him. They waited some 10 or 15 minutes and until he had signaled the train to start, when they closed about him and one of their number asked his name and entered into conversation with him. At the same time another approached him and lifted the ax helve in a way that led the conductor to believe that a blow was intended, whereupon he wrested the ax helve from him and swung it around. Most of the crowd had stepped back in time to avoid the blow, but the plaintiff was hit on the head and the scalp was cut for two inches. At the time the conductor was so close to the train that it nearly rubbed his back as it moved off. He caught on the train and went with it. There is little, if any, room for controversy about the foregoing statement. The preconcerted arrangement and attack upon the conductor is scarcely denied, and the claim that the plaintiff was not of the party, but was casually passing at the time, strikes us as so improbable, and the verdict is so excessive, that we should unhesitatingly set aside the verdict as contrary to the law and the evidence, did the record permit. The judge’s reasons for denying the motion are not shown, as required by law.

The plaintiff claims that he was asleep when the car reached Niles, and that he so remained until some person came into the car, a few moments before the train left, and aroused him; that he did not loiter, but went immediately out, and was going away when struck. This raised a question of fact as to his participation in the attack upon the conductor, which it was necessary to leave to the jury. Hence we cannot say that it was conclusively proved that he was one who either participated in or loitered to see the .attack.

It is claimed by defendant’s counsel that it was the duty of the plaintiff to be awake, and immediately alight and depart when the train stopped, and, failing to do so within a reasonable time, the relation of passenger had ceased, and the defendant owed him no duty of protection. This question was left to the jury, and the defendant claims it should have been determined by the court.

The declaration is a count for negligence, and counsel claim that, if it be found that there was a question of negligence in the case, the jury should have been instructed that plaintiff could not recover by reason of his contributory negligence (1) in not being awake and leaving the train and premises promptly, and (2) in getting in so close proximity to the parties engaged in the altercation as to be struck, when the immediate attacking parties escaped. We fail to find any allusion to the question of contributory negligence upon the trial. Not once was attention called to such a question. At any rate it is not pointed out to us, and we have not discovered it.

It is true that voluminous requests to charge were presented, in which the effect of plaintiff’s delay was given prominence; but, while the effect of such delay upon his right to protection as a passenger was given prominence, there was nothing to indicate that the doctrine of contributory negligence was in the mind of counsel. The court did not give these requests, but he did instruct the jury, in effect, that the plaintiff was required to depart in a reasonable time under all the circumstances, and, if he did not, could not recover. He refused however to instruct that a failure to keep awake and to leave the train immediately would necessarily deprive him of his right to protection as a passenger. We are not cited to any case which holds that a failure to leave the train immediately by a passenger who is sleeping terminates the relation of passenger and the carrier’s duty to a passenger, where those in charge of the train, knowing it to be his destination, have failed to awaken him and acquaint him with the fact that he should alight.

We have endeavored to examine critically the assignments of error raised, and fail to find one which calls for a reversal of the judgment. It is therefore affirmed.

McAlvay, Blair, and Montgomery, JJ., concurred with Hooker, J.