G., C. & S. F. R'y Co. v. Wallen

Robertson, Associate Justice.

The defendant neither caused nor contributed to the injury of plaintiff’s wife, unless it allowed the freight train to come so near to or so rapidly towards the passenger coach as to frighten the passengers. It does not appear from the testimony that a single one of those who leaped from the train, except the plaintiff, saw the freight train coming. When the plaintiff saw it, it was three or four hundred yards away, and, as he says, appeared to be moving rapidly. He does not state that he supposed from what he saw that there would be a collision. Ho one left the train upon his own perception of danger. On the contrary, those who used their own senses, felt no alarm, and remained in the cars. Whatever may have been the speed of the train when three or four hundred yards away, it was slowed to a full stop, at least fifty yards from the passenger coach. There was, therefore, no actual danger. There is no proof, direct or circumstantial, that a single passenger was frightened by observing the manner in which the train approached the coach. The statement of facts develop no cause whatever for the panic, which seized some of those in the cars, except a remark, made by some one, that “the freight train is upon us.” Hot a single witness ascribes this remark to any agent of the defendant There was some positive testimony that it was made by a drummer.

The plaintiff’s wife may have done only what a prudent person would have done, under the same circumstances, and the defendant still not be liable. If a ruffian had commenced the discharge of a revolver in the car, it would have been prudent for people to get out, but the carrier would not have been liable unless it committed some fault. The ruffian could be held, as could a passenger, who, in brutal sport, raises a false alarm and causes damage.

The district court should have granted the defendant’s motion for a new trial. The judge’s duty is not confined to advising the jury of the law of the case. If the testimony does not sustain the finding, the verdict should be set aside. We can find in the statement of facts in the record here no proof that the defendant was guilty of any act of negligence, contributing to the jnjury of plaintiff’s wife. In view of another trial, we refrain any further comment upon the testimony. The remarks excepted to in the closing speech of plaintiff’s counsel, were not authorized by anything in the record, and, in the remarks of opposing counsel, stated as provocation, we fail to discover any justification. Because, as presented here, the verdict was not authorized by the evidence, the judgment is reversed and the cause is remanded.

Bevebsed and Bemanded.

[Opinion delivered February 26, 1886.]