
    MARY LUCY v. CHICAGO GREAT WESTERN RAILWAY COMPANY.
    
    January 28, 1896.
    Nos. 9778—(284).
    Carriers — Protection of Passengers — Damages.
    In an action by a passenger against a common carrier for damages for failing to exercise proper police powers to protect her, and by reason of which a drunken and disorderly fellow passenger used towards her vile and abusive language, held, the verdict is sustained by the evidence, and not so excessive that this court ought to set it aside after the court below had held it not excessive.
    
      Appeal by defendant from an order of the district court for Kamsey county, Kelly, J., denying a motion for a new trial.
    Affirmed.
    
      Dan. W. Lawler, for appellant.
    
      S. L. Pierce, for respondent.
    
      
       Reported in 65 N. W. 944.
    
   CANTY, J.

1. The law is well settled that it is the duty of a common carrier to use the highest degree “of care reasonably practicable in exercising police power to protect its passengers from insult and injury by fellow passengers. Mullan v. Wisconsin Central Co., 46 Minn. 474, 49 N. W. 249. This is not controverted by appellant, but it is urged that the evidence does not show that appellant did not use all the care which the law requires. We are of the opinion that, under the evidence, it was a question for the jury whether or not such care was used.

It is true that it does not appear that appellant had any agent or other employé stationed at this waiting room; but, on the contrary, the evidence tends to prove that it had not. Neither are we inclined to hold that it was its duty to have any employé stationed there for the protection of passengers. This service was little, if anything, more than that furnished by ordinary street railways, in connection with which similar waiting rooms, or no waiting rooms at all, are used at street crossings or intersections.

Then, we cannot hold that the appellant received any notice of this drunken passenger’s actions at the waiting room, and it does not appear that the conductor on the train was ever informed of those actions. Neither can we hold that it is the duty of a common carrier to eject a drunken passenger who is otherwise entirely inoffensive. Then, we cannot hold that it was the duty of the conductor to eject this passenger until after he had commenced his vile abuse of the plaintiff, and the conductor had learned of it, or, in the exercise of the proper degree of care, should have learned of it; and the defendant is liable only for compensatory damages for the subsequent abuse which might, with such care, have been prevented. The train was crowded, and the conductor was for a part of the time in some of the other cars collecting fares; but it appears that, after he came into this car and was informed of this passenger’s actions, he did not interfere, but went on collecting tickets, and that this passenger called plaintiff names afterwards, and continued to abuse her.

We are of the opinion that there is evidence tending to prove that the conductor could and should have prevented some of this abuse, and that a verdict for plaintiff for some amount was justified by the evidence. The fact that the ‘drunken passenger would reach his destination and leave the train in a very few minutes, and the claim that it might cause considerable more disturbance to attempt to eject him before than to let him ride to his destination, were all matters for the jury to consider.

2. It is contended that the verdict is excessive. The plaintiff testified: “I was very delicate and nervous, and had been under the doctor’s care for a good many years; and I was not fit to be excited, and it affected my nerves so I was sick a long while after-wards. * * * Q. Well, how did it affect you? A. Affected my nerves, so I couldn’t rest at night, or the next day at all, but just thinking of it, and deathly sick all the way through.” Another witness testified that, after the occurrence, plaintiff “felt very poorly. She was sick, — nervous all the week. Seemed to be in distress. Sleepless.” This is all the evidence as to the extent of the injury plaintiff received. Neither does it appear but what plaintiff would have received a part of this injury, even if the conductor and defendant had used, to protect her, the utmost care and diligence which the law requires. Under these circumstances we feel that the verdict is decidedly large, and that a person who should, in proportion, receive compensation for a physical injury confining him to his bed for a few months, and causing him severe pain during the time, might receive much more than any court would allow. But the majority of the court are of the opinion that the verdict is not so excessive that it should be set aside by this court after the court below has passed on the question and held the verdict not excessive. Of course, if the action was against the drunken passenger himself no nice question of this kind would arise, as the plaintiff would, as against him, be entitled, not only to full compensatory damages for all his acts, but, in the discretion of the jury, to punitive damages also.

Order affirmed.  