Greenwood v. Union Traction Co.

Opinion by

Pouter, J.,

The plaintiff brought this actibn to recover damages for injuries alleged-to have been sustained by him, in falling after having been pushed frbm a moving car by a conductor of the defendant company. The plaintiff had testified in chief that he resided at Frankford, in the city of Philadelphia, and the court below permitted him to be asked on cross-examination whether he was a naturalized citizen, which is the foundation of the first specification of error. The plaintiff having seen fit to prove his place of residence, there was no impropriety in permitting the defendant to inquire whether he was a citizen of the United States as well as a resident of the city of Philadelphia. The admission of this evidence certainly did the plaintiff no harm, for the jury rendered a verdict in his favor, although his cause was sustained only by Ms own testimony and that of three witnesses, while their testimony was contradicted by that of seven witnesses, five of whom were disinterested.

The second specification of error is without merit. When the court said to the jury : “ If the conductor pushed the man off after he got upon the step of the car, with violence enough to throw him to the ground and injure him, and then started the car, that is evidence from which you may find .... you are not bound to find it, but you may find that the action of the conductor was negligent or careless,” it was not repeating nor attempting to repeat the testimony. The jury could only have understood that if from all the testimony they found the fact to >be as stated, that it was for them to say whether the action of the conductor was negligent. The learned judge in no part of his charge misquoted the testimony. Whether the car had started when the conductor put his hand upon the breast of the plaintiff and told him that he could not enter the car was, under the evidence, a disputed fact. The jury found that the conductor was negligent. The language of the judge, complained of in this assignment, had no possible bearing on any other question involved in the case, and the specification of error is dismissed.

The third and fourth specifications of error go to the refusal of the learned judge of the court below to instruct the jury that they might under the evidence find a verdict against the defendant company’for exemplary damages. The plaintiff recovered a verdict, under instructions of the court as to compensatory damages which were clear and full and as to which the plaintiff has assigned no error, in a sum which, in the light of the testimony, cannot be pronounced inadequate. He thinks he should have more, because the defendant company should be punished for the alleged wrongful act of its servant.

The conductor declined to receive the plaintiff as a passenger, stating as his reason that the latter was under the influence of liquor. That the plaintiff had been drinking is an undisputed fact. He admitted that he had had three drinks shortly before attempting to board the car, but testified that he was not drunk. He was, as to the latter fact,-contradicted by several witnesses. If the plaintiff was drunk the conductor was justified in declining upon that ground to receive him as a passenger, doing so in a proper manner: Pittsburg & Connellsville Railroad Co. v. Pillow, 76 Pa. 510. He had, however, no right to push him in such manner as to injure him.

The plaintiff in his testimony thus described the occurrence. When the car stopped he attempted to board it and the conductor told him to wait until some passengers had alighted. “When they got off, I stepped on the step again with the handle-bar in my hand. He pulled the bell and started the car, and he put his hand on my breast and he said, ‘ You can’t come on this car.’ I lost my foothold. I was trying to gain it again by hanging on to the handle-bar, but the car was going along and I had leave to go. ... I fell in the street.” The testimony of the plaintiff was in a measure corroborated by that of three witnesses called by him. One of these witnesses, MacFarland, testified: “ He (Greenwood) got on the step and stood there a while, and the conductor told him to get off. When the conductor told him to get off he wouldn’t get off. So he told his friend down on the street to take him off. Q. Who told his friend to take him off ? A. The conductor. Q. He told Greenwood’s friend ? A. Yes. - The friend didn’t have time to take him off, so he reached for the bell quick and gave the man a shove and he fell on the back of his head. The car had just started up.” Seven witnesses, five of whom were disinterested, testified that the conductor did not push the plaintiff from the car; that the latter was standing in the street when the car started, that he grabbed the handrail and was dragged by the car, that the conductor pulled the bell to stop, but, although the car was stopped within fifteen feet of the point from which it started, the plaintiff fell to the ground before it came to a standstill. The jury found, however, in favor of the plaintiff, and it must be assumed that the conductor pushed the plaintiff and that the latter as a consequence fell from the car. •

The recovery of exemplary damages from a master foi' injuries inflicted by the servant, which the master neither authorized nor approved, is not to be permitted except in a very clear case: Artherholt v. Erie Electric Motor Co., 27 Pa. Superior Ct. 141. Such damages-are allowed only where the act complained of has been committed willfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage, or wanton recklessness; in the absence of proof of these circumstances of aggravation, compensation merely is the rule: Nagle v. Mullison, 34 Pa. 48. There must he willful misconduct, or that entire want of care which would raise a presumption of “ conscious indifference to consequences: ” Lake Shore & Michigan Southern Railway Co. v. Rosenzweig, 113 Pa. 519; Lynch v. Troxell, 207 Pa. 162; Milwaukee & St. Paul Railway Co. v. Arms, 91 U. S. 489. When these principles are applied in an action for personal injuries suffered by the negligence of a servant, it is evident that, in order to permit of a recovery of exemplary damages, there must be actual malice, or such a reckless and conscious indifference to the rights of others as would, in a criminal proceeding, sustain an inference of legal malice. The motive of the defendant becomes material, there must be some wrong motive accompanying the wrongful act: Lynch v. Troxell, 207 Pa. 162; Pittsburg Railway Company v. Lyon, 123 Pa. 140.

There had been no previous ill-will upon the part of the conductor towards the plaintiff, and there was not an unkind word spoken at the time of the occurrence. All that appears is that the conductor pushed the plaintiff on the breast. The testimony of the plaintiff does not indicate that the push was a violent one, and he is the one person who ought to know whether he was roughly handled. The conductor declined to receive him as a passenger and gave his reason therefor, but there was no evidence of anger or conscious indifference to the consequences. While the witnesses contradict each other as to whether the car was in motion and whether the plaintiff was standing on the step or in the street at the time the conductor told him he could not enter the car, they all agree that the conductor very promptly stopped the car as soon as it became evident that the plaintiff was clinging to the handrail and about to fall. This case is ruled by Philadelphia Traction Co. v. Orbann, 119 Pa. 37. In that case a young boy was pushed off a moving car by a conductor, and was run over by a trailer, or second car, which was drawn by that from which he fell. The .trial court permitted a recovery of exemplary damages, and the judgment was reversed; Mr. Justice Clark, who spoke for the court, said: “ There can be no justification, of course, for the negligent act of pushing a little boy off a moving car, and for the consequences of such an act the offending party would ordinarily be held to compensate the injury. But whether he will also be punished for the act, must depend upon the manner or the motive in which the act is done.”

The assignments of error are overruled, the judgment is affirmed and the appeal dismissed at costs of the appellant.