SEAWELL v. RAILROAD Co.

Populist dog, you suck eggs, I see them on you," the whole crowd laughed and jeered, Hamrick calling out, "Put that suck-egg dog off at Buffalo and let him wash himself," that Ramseur, the station agent, nor Wells, the assistant agent, nor any one else in the service of the company, made any effort to stop the assault or insult, and that Ramseur, Wells and Carroll joined in the laughter at the insults and assault; that the plaintiff was just opposite Ramseur's office when the egging occurred; that the egging crowd went into Ramseur's office several times before the beginning of the assault and came out of the office with Ramseur immediately before the assault.

There was evidence contradictory of some parts of the above evidence, but upon a motion to non-suit the court can only consider the evidence favorable to the plaintiff and in the most favorable light for him. The evidence was properly submitted to the jury to determine the truth of the controverted matters of fact.

The exceptions to evidence do not require discussion and indeed were not much pressed here. The charge was as follows, but the exceptions entered thereto are without merit, and indeed they are omitted from the defendant's brief, except the last exception:

THE CHARGE.

This is an action brought by the plaintiff against the defendant to recover damages for an assault made upon him by its agents and employees while the relations of passenger and carrier existed. This is his first cause of action. The burden is on the plaintiff to satisfy you by the greater weight of the evidence that the relationship of passenger and carrier existed, and if you find as a fact from the evidence, and by the greater weight thereof, that the plaintiff had a mileage book entitling him to passage over the defendant company's

SEAWELL V. RAILROAD Co.

road, and that he came to the depot of the defendant ten or fifteen minutes before the departure of the train with the purpose to take passage on said train and was at the place where passengers usually assemble for this purpose of boarding the train then you will respond "Yes" to the first issue. If the plaintiff has failed to so satisfy you, you will respond to the first issue "No," and will not consider the other issues (To this the defendant excepted.) Eleventh exception.

In passing upon the second issue the burden is on the plaintiff to satisfy you by the greater weight of evidence that the assault was committed by the agents and employees of the defendant company, or that they aided and abetted and encouraged said assault, and if the jury find as a fact from the evidence and by the greater weight thereof that the agents and employees of the defendant company either assaulted or aided, abetted or encouraged such assault upon the plaintiff while acting within the general scope of their employment and acting within scope of employment means while on duty as agents and employees of defendant company, you will respond "Yes" to the second issue; if not so satisfied you will respond "No" to said issue. (To this the defendant excepted.) Twelfth exception.

For a second cause of action the plaintiff alleges, that while the relationship of passenger and carrier existed he was assaulted at the depot of the defendant company, while he was there for the purpose of taking passage on defendant's train and at the place where passengers assemble for the purpose of boarding the train, and that the agents and employees of defendant after they had notice of said assault made upon him by the persons who were at the depot, failed and neglected to afford to him the assistance and protection which was their duty to do, provided the jury respond to the first issue in the affirmative. The burden is on the plaintiff to satisfy you by the greater weight of the evidence of the fact

SEAWELL v. RAILROAD Co.

that the agents and employees of the defendant company had notice of the purpose on the part of those who assaulted the plaintiff and had an opportunity to offer aid and protection to the plaintiff, and failed and neglected to do so, and if the plaintiff has so satisfied you then you will respond "Yes" to the third issue, and if not so satisfied you will respond "No" to said issue. (To this the defendant excepted.) Thirteenth exception.

(To

If the jury respond "No" to the first, second and third issues then you will not consider the fourth issue, but if the jury respond "Yes" to first issue and respond "Yes" to either one of the issues two and three then you will consider the fourth issue as to damage. In passing upon this issue the court charges you that the plaintiff is entitled to recover such actual damage as will compensate him for the injury to his wearing apparel, for any physical pain he suffered and for the mental anguish he endured by reason of the assault. this the defendant excepted.) Fourteenth exception. The court began reading the evidence to the jury Thursday evening and continued to read until it began to grow dark when the court moved to a table within the bar in front of the jury where there was sufficient light and continued in this place during the remainder of the session Thursday evening. When the court convened Friday morning, the court resumed its position which it had occupied Thursday evening because of the convenience and to save the voice of the court and to enable the jury to hear the testimony and the charge of the court. (Defendant excepted.) Fifteenth exception.

During the trial of this cause, and while the plaintiff was testifying as to his condition during the assault, and how he got the eggs out of his ear and face, some persons in the audience broke out in a loud laugh. The court required the jury to retire, and then stated, during the absence of the jury,

SEAWELL V. RAILROAD Co.

that if there were any persons in the audience who had come for the purpose of laughing this case out of court it would be well for them to retire at once. That if it were repeated, such unseemly and disreputable conduct would be punished by sending the person or persons engaged in it to jail for contempt of court. Afterwards some of these parties were called as witnesses for the defendant and testified that they engaged in the egging of the plaintiff.

Later during the hearing of the testimony when Lineberger was sitting on the front seat in full view of the court and while one of the defendant's witnesses was testifying to how he pelted the plaintiff with eggs, the court saw and heard Lineberger break out in a loud laugh and directed the sheriff to take him into custody. This was done and Lineberger was placed out of view of the jury and remained there until he was called as a witness for the defense as to the character of some of the defendant's witnesses. At the close of his testimony the witness asked to make a statement to the court and said that he was not laughing; that he had a bad cough and had his head down to cough so as not to make a disturbance; that he was one of the men who condemned what was done. This man was known to the court to be a witness at the time he was ordered into custody, and the purpose was to attach him for contempt, but after his statement the court took no further notice of his conduct and released him from custody. (Defendant excepted.) Sixteenth exception.

The judge stated that he saw and heard the witness laugh. The failure of the judge to take any further notice of the matter, or to punish for contempt, was not a matter for exception by the defendant. This and the preceding exception are evidently on the ground that the trial was prejudiced by the conduct of the judge, but we find nothing therein to sustain the allegation.

Affirmed.

ELMORE v. RAILWAY CO.

ELMORE v. SEABOARD AIR LINE RAILWAY CO.

(Filed June 10, 1903).

1. NEGLIGENCE-Contributory Negligence-Couplers-Railroads-Master and Servant.

In an action by a brakeman for damages for personal injuries, there can be no recovery where the injury was caused, not by a defective coupler, but because plaintiff negligently used his foot to push the bumper in place.

2. NEGLIGENCE-Contributory Negligence.

The failure of a railroad company to have self-coupling devices on their cars is a continuing negligence; and, to an action for an injury resulting therefrom, contributory negligence is not a defense.

3. NEGLIGENCE-Contributory Negligence-Master and Servant-Couplers. The fact that an employee remains in the service of a railroad company, knowing that its cars are not equipped with self-couplers, does not excuse the railroad from liability to such employee, if injured while coupling its cars by hand.

4. NEGLIGENCE-Automatic Couplers-Railroads.

The failure on the part of a railroad company to keep automatic couplers in proper condition and repair is negligence, as much as if the cars had never been equipped with such couplers.

5. NEGLIGENCE-Contributory Negligence-Master and Servant. In an action for a servant's injuries, a charge that if a coupler was out of order, so that it was necessary to go between the cars to make the coupling, and plaintiff was directed by the conductor, whom he was under duty to obey, to couple the cars, and he was compelled to go between the cars to couple, and it was dangerous, and more probable that it could not be safely done than that it could, plaintiff would be guilty of contributory negligence, was sufficiently favorable to defendant.

6. NEGLIGENCE-Contributory Negligence-Master and Servant. In an action for a servant's injuries, an instruction that if plaintiff kaew that the coupler was out of order, and that it was too dangerous to go between the cars to couple, and that plaintiff used his foot to make the coupling, and that by reason of his position Vol. 132-55