Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-06-27

supreme court or Appeals or West Va.
April ii. 1900.
A RAILROAD COMPANY IS LIABLE
TO A PASSENGER FOR A WILL
Full ASSAULT AND BATTERY
ON HIM BY ONE OF ITS CON
DUCTORS.
The court says:
Defendant obtained a writ Of error
from one of the judges of this court
to a judgment against 1t for the sum
of $500 rendered on the 11th day of
october. 1898, by the circuit court OF
Wayne county on verdict of n iurv
IN favor of the plaintiff for an aggra-
Vateu assault made upon him, while
passenger on one of the defendants
trains, by the conductor thereof. There
are TWO main grounds relied on. to wit.
mat me verdict is contrary to the law
ana evidence. and that the court erred
In giving the following instruction.
designated as No. 2: The court IN
Structs the jury that If they should
oeileVe from preponderance of the
evidence in this case that the plaintiff.
at the time Of the injury complained of.
while riding as Il passenger on the de-
ienoants train. was cursng or behav-
ing III a riotous or disorderly manner,
then 1t was the privilege of the de-
PENDANT to put him off such train, and
the law gave the conductor and train
men In charge OF such train the right
tc use such force as was necessary for
that purpose: but no such conduct on
the part of the plaintiff would license
or authorize the conductor on such
train to unnecessarily assault and beat
the plaintiff" The defendant insists
mat this instruction garbles the evil
dence, in not adding thereto: And
If the jury further find that the plain
III did not first assault the conductor
There are two objections to this
amendment. The one Is that 1t is al
ready sufficiently and substantially
contained in the words "rlotous and
disorderly manner" and the the other
Is that. if the plaintiff did first as
sault the conductor that would not
justify the conductor in unnecessarily
assaulting and beating the plaintiff
The distinction attempted 10 be drawn
Is entirely too fine of comprehension
TO have any weight with the ordinary
JUDICIAL mind. and could not possibly
nave affected the verdict of the Jury
pre1udioially to the defendant The
question submitted 10 the Jury was as
TO whether the conductor unnecessarily
assaulted the plaintiff. He. being Il
passenger, was entitled to protection.
and the law enjoins on the conductor.
as the representative of the defend
ant. this duty. Common carriers are
liable for the willful, wanton, mali
cious or Illegal conduct of an en-
poyee towards passengers. on their
trains. when such conduct is n breach
OF the duty owed To persons intrusting
themselves to their care at their solic-
1tation for compensation. There is no
question but that the conductor did
assault the plaintiff. passenger on
ms train. who had paid his fare. and
was entitled to ride thereon and to the
protection of the defendant. The plain
tiif's evidence shows that such assault
was aggravated and unjustiiable. to
such an extent as to clearly establish
righteousness. The defendants evil
dence. standing alone, would establish
complete justification, and destroy the
aggravated character OF the assault.
and Herewith malice. The conflict
thus presented Is one for a Jury to
determine. 1t depends almost entirely
on the credibility of the witnesses, and
the weight given thereto bv the var
dict or the jury. sustained by the trial
court Affirmed.