Willard v. St. Paul City Railway Co.

Start, C. J.

The plaintiff, a strong man weighing one hundred seventy-eight pounds before his injury, was on August 27, 1910, at about 10: 30 o’clock p. m. on one of the cars of the defendant which was going up Wabasha street in the city of St. Paul. When the car was nearing the State Capitol, the conductor of the car requested the plaintiff to pay his fare. He refused so to do for the reason, as he then claimed, that he boarded the car at Minneapolis, paid his fare to St. Paul, and seasonably informed the conductor that he wished to get off at Avon street; that the conductor failed to call that street, whereby, without fault on his part, he was carried past his destination. Pie then rode around the loop and claimed the right to be carried back to Avon street without payment of another fare. The conductor insisted that he pay his fare or got off the car. He refused to do either. The conductor then called the motorman, and together they attempted to put the plaintiff off the car. Pie forcibly resisted them to the full extent of his physical powers. He was finally forced — or, as he testified, thrown — from the car, striking the ground, whereby he was seriously injured. This is an action to recover from the defendant damages for injuries so sustained.

The trial court correctly instructed the jury to the effect that the plaintiff, at the time he was ejected from the car, had no right to ride on the car without paying the fare demanded by the conductor, and that it was the right and duty of the conductor to put him off the car upon his refusal to pay the fare, provided he used only such reasonable force as was necessary to remove him therefrom, and, further, that if, in ejecting him from the car, the trainmen used more force than was reasonably necessary, under the circumstances as disclosed by the evidence, which was the direct cause of his injury, the defendant would be liable therefor, but, if no greater force was used than was reasonably necessary to overcome the plaintiff’s resistance and to eject him from the car, he could not recover. The jury found for the plaintiff on this issue, and returned a verdict for $1,500 damages. The defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial.

1. The first contention of the defendant is that upon the whole evidence it was entitled as a matter of law to a directed verdict in its favor.

The plaintiff’s conduct, judged by his own testimony, deserves censure, and if the trainmen used no more force than was reasonably necessary to eject him he is not entitled to any compensation for his injuries, for he brought them upon himself by his own misconduct. Even if his contention had been correct, his cause of action was complete when he was ordered to leave the car, and he had no right to remain, throw down the glove, and demand a trial of the justice of his claim by wager of battle. Public order and the safety and comfort of the passengers on the car forbade it. Morrill v. Minneapolis Street Ry. Co. 103 Minn. 362, 115 N. W. 395, 123 Am. St. 341.

While the trainmen were not bound at their peril to measure with mathematical certainty the amount of force to be used in overcoming the plaintiff’s resistance, yet if they used essentially more force than was reasonably necessary they became wrongdoers, and they and the defendant are liable. We have, then, the simple question whether the evidence conclusively shows as a matter of law that the trainmen used only so much force as was reasonably necessary to eject the plaintiff. If his testimony be true, and of this the jury were the judges, excessive force was used in ejecting him, as he testified that the trainmen pitched him headlong off the car. The question was one for the decision of the jury, and the defendant’s motion for judgment was properly denied. The evidence was sufficient to sustain the verdict, and the motion for a new trial on this ground was rightly denied.

2. On the trial a physician was called as a witness by the plaintiff, and asked, with others, this question: “Doctor, I ask you, you heard the testimony of the plaintiff, and from that testimony and from your medical examination that you made of this plaintiff, can you form an opinion as to what caused these conditions that you found? (Objected to by' the defendant as improper and not based on the evidence, and there is no foundation laid for the question.)” The objection was overruled, the witness answered in the affirmative, and over the objection of defendant gave his opinion. The ruling is assigned as error.

Technically the question was subject to the objection that it did not assume the truth of the testimony, but that objection was not made. The objection that “there is no foundation laid for the question” is too general to be of any avail, and falls within the rule, especially applicable to expert evidence, that an objection to the introduction of evidence must state the precise point of the objection, so definitely that the court may intelligently rule upon it, and the adverse party may, if the case will admit of it, remove the objection. Dunnell, Minn. Digest, § 9739. We find no reversible error in this ruling, nor in any of the rulings of the trial court on the admission of evidence.

The learned trial judge in ruling in defendant’s favor upon the question as to the admissibility of evidence, gave as a reason therefor that: “We all know that a man with a broken joint never will get as well as when the Lord made him.” This is assigned as error, for the alleged reason that it was a misapprehension of the facts and an invasion of the province of the jury. Upon a consideration of the evidence relevant to this assignment of error, we are of the opinion that, if the remark was error, it was an abstract one, and in no event a reversible one.

3. The last contention is that the damages are excessive. Our conclusion, from a consideration of the evidence, is that the damages awarded are liberal, and all the plaintiff was entitled to in view of his conduct; but they are not excessive, within the rule applicable to such cases.

Order affirmed.

[Note] As to duty of passenger to pay fare wrongfully demanded in order to avoid expulsion and lessen damages, see note in 34 L.R.A. (N.S.) 282.

Validity of regulation requiring passenger to pay fare in case of dispute, see note in 2 L.R.A.(N.S.) 695.