Williams v. . Gill

Citations

• 29 S.E. 879
• 122 N.C. 967
• 1898 N.C. LEXIS 378

Syllabus

<p>Action for Damages — Issues—Practice—Trial—Common Carriers — Assault on Passenger by Employee— Evidence — Insolvency of Railroad Company.</p> <p>1. The framing of issues being a matter within the sound discretion of the Court, a party excepting thereto must show that the exercise of such discretion has operated to his injury.</p> <p>2. In the trial of an action for an assault on a passenger, by an employee, on defendant’s railroad train, where the complaint alleged that plaintiff was assaulted by the Conductor and another person in defendant’s employment, it was not prejudicial to the defendant to change an issue at first framed and submitted as follows: Did the defendant through the Conductor and other agents or servants unlawfully assault” etc., by substituting the disjunctive “or” for the conjunction “and.”</p> <p>3. The fact that the brakeman on a railroad train struck a passenger instantaneously upon the latter’s using a vile epithet to him,- and before the Conductor could interfere, will not relieve the railroad company from its liability for the assault.</p> <p>4. Where the relation of carrier and passenger exists, the conduct of an employee of the carrier in inflicting violence on a passenger, though the act be outside of the scope of his authority or even willful and malicious, subjects the carrier to liability in damages just as fully as if the carrier had encouraged the commission of the act. (FíVircloth, C. J., dissents, arguendo).</p> <p>5. Where, upon the trial of an action,no part of the plaintiff’s testimony was favorable to the defendant and several of the latter’s witnesses testified to the fact alleged in the complaint as the cause of action, it was not error to instruct the jury that, if they believed the defendant’s testimony, they should find for the plaintiff.</p> <p>6. The fact that a railroad corporation is in the hands of a receiver is no evidence of its insolvency.</p>