
    Martin C. Flannery vs. The Baltimore & Ohio Railroad Co.
    Law. No. 23,444.
    Decided June 1, 1885.
    Justices Cox, Jambs and Merrick sitting.
    1. The employees of a railroad company constitute the police of the train and the passenger, from the moment he enters the car, is entitled to look to them for proteetion in cases of assault growing out of the disorderly conduct of another passenger or passengers.
    2. When the agents of a railroad company are guilty of malicious or intentionally negligent conduct, so as to amount to a reckless disregard of the rights of passengers, a jury may award exemplary damages; but the court will interfere when such damages are grossly excessive.
    STATEMENT OE THE CASE.
    This suit was brought to recover damages for an assault committed on the plaintiff while travelling on one of the defendant’s trains between the cities of' Baltimore and Washington, by one Carroll, a fellow passenger, and a person in nowise known to or connected with the defendant.
    At the trial the evidence in substance was that on the 10th of October, 1881, the plaintiff purchased from the agent of the Baltimore & Ohio Railroad Company a return trip ticket, entitling him to a passage over its road to the city of Baltimore and back to Washington; that he left Washington about 6 o’clock p. m. of the same day, arriving in Baltimore on train time ; that about eleven o’clock p. m. of the same day he went to the company’s depot on Oamden street in Baltimore, intending to take passage for Washington ; that the depot was crowded and the cars of the train for Washington full of passengers; that he got upon the platform of one of the cars of the said train and was about to enter when some person unknown to him, and not an officer of the defendant company, said that he (Flannery) could not go in; that on being asked by the witness why he could not go in, the stranger, who had a woman with him, said that he did apt want to be bothered with him (witness) at the door; that >the stranger threatened to assault him and pitch him off; to avoid trouble witness waited upon the platform of the station and then upon the platform of the car next in front for the coming of the conductor i that in about half an hour the conductor came along, to whom the plaintiff told the fact of his being kept out the car, and asked his safe conduct into the car. The conductor took his ticket, and told witness to follow him into the car; that he did follow the conductor into the car, and when he had got about 12 or 15 feet from the door, having found a place, where there was plenty of room, he saw approaching him the man who had prevented him from entering the car; that the man caught hold of witness by the collar and said that he must leave the car; witness claimed his right as a passenger and argued that he was acting as a gentleman and in a peaceable way; that the man said he didn’t care a damn, and that witness would have to leave the car, and seized the witness; that as he did so witness called upon the conductor several times, who was then a short distance off collecting fares, for protection, and the conductor said that “ if I didn’t stop my damn mouth he would pitch me off the train,” whereupon the assailing parties re-attacked witness and beat him off the car and the conductor knew of it; that witness was cut about the face and was bleeding and stunned ; that he remained on the platform until he reached Washington about two o’clock a. m. of the eleventh of October, 1881; that when he got to Washington he went home, and in the morning went to Dr. Bowen’s office and had his wounds dressed and attended to.
    
      On cross-examination the witness stated that at the time of his going to Baltimore the “Oriole” was being celebrated in that city; that there were a great many returning to Washington that night; that the depot, the depot platform, and the cars were full of people; that he had never seen his assailant until he was prevented by him from entering the car as stated in his direct examination; that his assailant swore at him, and said: “Damn you, I will pitch you off the train,” and “that if he had no lady with him he would pitch him off the train,” and that he also said to witness: “You insulted that woman” (the woman with stranger).
    The plaintiff then offered as a witness one Nelson Levy, who testified that: “A friend of mine and myself were visiting the Baltimore Oriole; we came back on the last train, and met Mr. Flannery, the plaintiff, on the platform of the car; the car was well crowded, and the crowd on the inside of the car would not let us in; we had to ride a considerable distance until the conductor came along; the conductor said: ‘If you follow me you can go inside.’ We went in with the conductor ; there a disturbance arose, and I found out that Mr. Flannery had been assaulted; the scuffling took place in one half minute after we entered; the conductor was then standing by me; I heard Mr. Flannery call for assistance from the conductor several times, and the conductor answered several of these appeals in the same way, and said: ‘If you don’t shut your damn mouths, I will 'stop the train and put you all off.’” Witness at the time was seated several seats from where Flannery was standing; that he did not see Flannery after entering the car; that he did not go to his assistance, being himself a cripple; that he saw him next morning, and his face was bandaged up.
    Dr. C. H. Bowen, as a witness for plaintiff, testified, that on the 11th of October the plaintiff called at his office for treatment; that he had cuts, lacerations and contusions on the head, face and scalp, and was cut through his lip and tongue and head and an incision under the left eye and lip, and that he attended plaintiff and treated his wounds for about thirty days.
    William Dunn testified, that in 1881, at the time of the Baltimore Oriole, he saw Mr. Flannery at the Baltimore & Ohio depot in Washington city on the arrival of the train from Baltimore at night, looking as if he had been roughly handled; that he had several wounds on the face and cheek, his clothing was torn, and he appeared to be chilled through.
    The plaintiff having closed his case; the defendant then offered as a witness A. E. Bowen, who testified, that he was the conductor on the train upon which the plaintiff was at the time of the alleged assault; that as the train was a very long one, and the cars very much crowded, he authorized Henry Worthington, a sleeping-car conductor, to collect the tickets on the three parlor cars attached to the train.
    The defendant then offered Henry Worthington as a witness, who testified, that he was authorized by Conductor Bowen to collect, and did collect, on the occasion in question, the tickets on the three parlor cars; that after he had, in the course of collecting tickets, gotten about one-third of the way in the middle parlor car, he heard some one call to the conductor, “I claim your protection;” that the call was repeated several times; that he immediately turned around towards the end of the car from which the call came and said, “if the parties who are making the noise did not immediately quit, he would stop the car and put them all off;” that the noise and disturbance seemed then and there to cease, but that he did not attempt to go to the assistance of the party who called on him for protection because, believing it was all over, he went on collecting the tickets; that he did not know who called for protection; that he did not see any one who had been hurt on the train that night, and did not hear that any one had been hurt on the train until some days afterwards; that he afterwards understood that the man who had the difficulty with the plaintiff was named Carroll, and that he is now dead; that ho was in no way connected with the company; that the witness is still in the employ of the defendant.
    The defendánt- offered James L. Barbour, Dr. C. W. Franzoni, B. F. Summy, William Wattington, and John B. Ulrich as witnesses, who testified that they were on the same car with the • plaintiff on the occasion named; that they were returning from the Oriole, and the train on which they were was the last train that night; that it was very crowded; that they were seated about the middle of the car; that they heard no unusual disturbance, and knew of no assault until after they had reached Washington; that the conductor, or person acting as conductor, was polite, attentive and gentlemanly.
    The evidence being closed upon both sides; the court thereupon, of seven prayers asked by the defendant, granted the fourth, which was as follows:
    “ That', in order to entitle the plaintiff to recover, the jury must be satisfied by a preponderance of testimony that the conductor or person acting as conductor had notice before the assault or in time during its progress to have prevented the injuries of which the plaintiff complains, by the exercise of due diligence.”
    And also the seventh, with the modifications as indicated in brackets:
    “ That in order to entitle the plaintiff to recover the jury must be satisfied, by a preponderance of testimony, that the conductor, or the person acting as conductor, had notice before the assault or in time during its progress to have prevented [or mitigated] the injuries of which the plaintiff complains, by the exercise of due diligence [and that, having such notice, he gave no proper order and took no proper action to give protection to the plaintiff].”
    The court, thereupon, upon its own motion, instructed the jury as follows, to wit:
    1. “If the jury believe from the evidence, that on the night referred to in the testimony, the plaintiff was a passenger on board the defendant’s train from Baltimore to Washington ; that the plaintiff, while conducting himself in an orderly manner, was assaulted by a fellow-passenger; that he thereupon called repeatedly for assistance on the conductor, who was then collecting tickets in the same car; that the conductor heard the call more than once, and saw the scuffle; that he did not go towards the plaintiff in compliance with his appeal for help, but replied to such calls with language to the effect that cif they did not stop their damned noise he would stop the train and put them all off,’ and continued on through and out the car without attempting to give the plaintiff any assistance, or to remove the attacking party from the car; and shall further believe from the evidence that after the plaintiff had made the said calls for assistance, and the conductor had made reply as before stated, the plaintiff was further beaten and forced out of the car by his assailant, then the plaintiff is entitled to a verdict.”
    2. “ If the jury shall further believe from the evidence that before the plaintiff had entered the car he informed the conductor that he had already been prevented from entering it by one of the passengers, and that shortly after he entered the car behind the conductor he was again assaulted by the same passenger, and thereupon repeatedly appealed to the conductor for assistance ; and that his cries were so frequent and of such a character as reasonably to ajiprise the conductor that an assault was being committed, and ..that the conductor’s interference was needed to stop it; and shall further believe that the conductor absolutely neglected and failed to interfere, and that such neglect and failure was wilful, or was the result of such reckless indifference to his duties, and to the rights of the plaintiff and the other passengers as, in the opinion of the jury amounted to an intentional violation of them, and was accompanied by the use of insulting or offensive words, addressed to the plaintiff in the presence of the other passengers ; and that the conductor left the car without • any further inquiry or interference than to make use of the expressions before referred to, and did not enter it again during the remainder of the trip ; and shall further find that the said Worthington was and is still retained in the service of the defendant company ; and if the jury shall further believe that the damages the plaintiff is entitled to recover as compensation for the physical and mental injury sustained by him would not be sufficient to punish the defendant and serve as a warning for the future, and that such punishment ought justly to be visited upon the defendant, then the jury is instructed that they are authorized in their discretion, to give such additional damages for the sake of the public example as they may think the circumstances of the case require."
    3. “ The jury are further instructed that they should be very cautious in the exercise of their authority to give exemplary damages, under the circumstances set forth in the second instruction, and should allow no greater sum as exemplary damages (if they should award such damages) than is just and reasonable, and should not permit their judgments to be so swerved by passion as to render an oppressive or unreasonable verdict.”
    To all of these instructions the defendant severally excepted.
    The court charged the jury as follows :
    “ Gentlemen oe the Jüry : The case' is an important one, and it has been carefully argued. Its trial has been con-. ducted with such deliberation that almost all the points which are really involved have been explained to you. Therefore I conceive I can add very little to the language of the instructions. I shall, however read them anew and make a few remarks on the subject. Here the justice read the court’s first instruction. Now, gentleman that is the general law of the case, which is based on the idea that the railroad company and its employees are the police of the train. A passenger does not enter the depot or that part allotted to the cars, exept by presenting .his ticket. [He goes in there and takes his seat in the car. From that moment the police of the city, where he lives, are left behind him and the employees of the company constitute the police upon whom the passengers are dependent for their protection.] This case, of course, is not to be tried in a different way because the plaintiff, if there were evidence on the point, is a poor man or a rich man. It is to be tried just as if the plaintiff had been either one of the distinguished counsel who had been injured. The law is that an orderly person, under such circumstances as these shown here, places himself under the charge of the conductor and employees of the company, they are the police upon whom devolves the duty of seeing that he shall be protected and that he travels in safety, which is the purpose for which he got on the train. It has been argued by the .counsel for the defendant that if you believe the conductor, when he was called upon, made the threat that unless the noise ceased he would put those people off, and if you further find that he believed that was all that was necessary for him to do, then he had discharged his duty — in other words that his belief was the measure of his duty.
    Mr. Merrick. “ I said that if the conductor ordered the noise to cease and it was then suspended, and he believed the disturbance was over, then he had done his duty.” This correction was assented to by the court.
    “This I conceive to be an incorrect statement of the law. The question as to what was his duty is one of fact. It was not sufficient for him to say that he believed that that was all that was necessary. Was the reiteration of the cry for assistance, and the manner of the cry, and the circumstances surrounding it, sufficient to induce the conductor reasonably to believe that his interference was requisite to stop the quarrel that was going on in the car ? It is also argued that it would make a difference in some way, probably upon the question of damages, if the jury should think that the plaintiff was the aggressor and a wrong-doer in the preliminary trouble on the platform of the car. It is for you to determine whether there was proof that he was a wrongdoer at this period. The evidence on that point comes from the plaintiff himself, and he positively denies any such imputation. Mr. Levy says he saw nothing in the man’s conduct, at any time, except that of a gentleman, and the conductor, himself, does not say that he was misbehaving himself. But it is argued that you may infer that he had given some serious offence because the plaintiff admits that his assailant had accused him of having insulted a lady.
    [“I say, in reference to that, that when you are considering whether such an inference may be made by you, you will remember that this circumstance was testified to only by the plaintiff himself, who denies positively that there was any truth in the man’s charge. It would be a most curious conclusion to say that the plaintiff was the aggressor in the quarrel, when, according to his statement, which is the only testimony on the subject, it was forced upon him hy his assailant. Suppose the plaintiff had testified that the man, in commencing the quarrel, had prefaced it by saying “-You are the man who shot Garfield,” would you be justified in concluding, from the fact that the man did make that charge, that it was true ? Of course this is rather an exaggerated illustration, but it serves to explain my meaning.]
    [“You are to take into consideration all the facts. It is your duty to consider every particle of the testimony ; every thing adduced by the defendant, as well as by the plaintiff; but you are not to imagine things of which there is no proof at. all. You are not to conjecture this, that, or the other, for the reason that your oath is- to decide the case according to the evidence. You would have no right even to act upon any circumstance connected with the case that one of you may know, unless it has been given in proof on the witness stand,]
    “These remarks apply specially to the first instruction, which refers more particularly to the question of responsibility and duty. Next, as to the matter of damages, which is explained in the second instruction. Ordinarily it is the duty of the jury to find a verdict in an amount which they believe would fairly compensate a plaintiff for injuries sustainted. There are cases, however, where the jury 'can go beyond this for the sake of public example. In such cases they have the right to give larger damages than they believe would serve merely to compensate for the individual injury. Now, I have here stated, as carefully as I could, the conditions surrounding this branch of the case (reading from second instruction to the words ‘ and that the conductor’s interference was needed to stop it.’)
    “ [I pause here to state, what seems to me to be the proper rule on that subject, that it would not be enough for the conductor to say: ‘ When I told those people I would put them off the car, I believed that threat would be enough.’ It is not sufficient for the conductor to content himself with this, because it would create a measure of duty which would be an extremely insufficient one, since the conductor might he very stupid about it, and satisfy himself too readily, and without due consideration that his'mere threat would suffice to allay the discord.] The inquiry would rather be as to the actual appearance of affairs then before him.
    “What was the nature of the call? Was it only indicative of some trivial disturbance, or was it of such intensity and earnestness, and so often repeated, as would reasonably apprise him that an assault was being committed, and that his assistance was needed (reading again, commencing: ‘And shall further believe,’ &c., to the words ‘amounted to an intentional violation of them’). That is again a test. [If you find he acted in such a careless manner, and with such reckless indifference as showed that he didn’t care about the rights of the man at all, and if you believe that was the state of mind in which this appeal was rejected by the conductor (reading again to the words ‘ and shall find that the said Worthington is still retained’).]
    “ [In reference to that I say it appears that he is now clerk of this defendant in its parlor-car factory. It is fair that you should take this circumstance into consideration in determining whether or not the company condemned his act as conductor, though they still retained him in another capacity.] (Reading rest of instruction.) [You observe it is left to your discretion, if you shall find such facts ás I have set forth here, and if you should come to the conclusion that the damages which would merely compensate plaintiff for his injuries would be insufficient as an example, and that this was a case you should find a verdict by way of example, then you are at liberty to no further and give him, additional damages, which are indifferently called exemplary or punitive damages, or smart money,] There is another designation, sometimes used ‘vindictive’ damages, which, I confess, has an unpleasant sound in a court of justice.' Now the question is, what should you do about the amount of the damages? With reference to that question I say (reading third instruction) you are not try' ing in this case, gentlemen, to wreak vengeance on any' body.' You are to do justice in the matter between these parties; [and the consideration that this is a corporation should not weigh with you one particle beyond what is just and reasonabie.]
    “I think it also my duty to say that the company should not be held answerable for the language of the counsel for the defendant in his treatment of the case, if you should think he has been unreasonably severe upon the plaintiff here. We are talking now of what occurred in 1881, and not of the conduct of the company’s agents since that time.
    “There is another remark I will make in reference to an argument of the counsel for the plaintiff that the test of the amount you should award in this case is to put yourselves in the position of the person injurod, and • conceive what sum would induce you to submit to such treatment. It is true, this idea may find a place in the formation of your judgment, but, of course, it cannot be a conclusive test in such a case. [There may be jurors who would not endure • to be struck an insulting blow for a million of money, but it does not follow that a blow inflicted by one man on another should, therefore, entitle every plaintiff to a verdict from such a juror for such an amount.]
    “So you observe that that is not a fair test always. There are two instructions granted with, some modifications, at the instance of the counsel for the defendant. (Reading fourth prayer of defendant.)
    “ That is common sense and I grant the instruction for the reason that the conductor might be out of the car when one man may strike another. You cannot expect a conductor to stand at the hack of every seat and prevent such things as that from occurring. The case for recovery must be such an one as it is insisted is shown here. Where the conductor had notice that the fracas was going, on, and could, by his interference, have stopped it, or at least mitigated it, then the question is, whether he gave a proper order and took proper means, because merely to give an order to stop might he totally inefficient.
    (Reading seventh prayer for defendant.)
    
      “ That I grant you are to take into consideration all the circumstances. ”
    To such parts of the charge as are enclosed in brackets the defendant also excepted.
    The jury found for the plaintiff and returned a verdict for $5,000.
    H. 0. & R. Claughton for plaintiff:
    Whether exemplary damages is merely compensation, or punishment, it is now universally recognised and established that in all actions on the case for tort a jury may inflict them. 2 Sedgwick, 456 (side page) et seq. to 467; Milwaukee R. R. Co. v. Armo, 1 Otto, 465 ; Day v. Woodsworth, 13 How., 363; Phila., W. & B. R. R. Co. v. Quigley, 21 How., 202 ; Valtz v. Blackmar, 64 N. Y., 440 ; Hoadley v. Watson, 45 Vt., 289 ; McWilliams v. Pragg, 3 Wis., 429 ; Hawes v. Knowles, 114 Mass., 518.
    Criminal indifference to duty amounts to “ evil motive.” B. & Y. Turnpike Co. v. Boone, 45 Md., 344; Magee v. Holland, 3 Dutch, 86.
    Gross negligence. Railroad Co. vs. Lockwood, 17 Wall., 357 ; Prickett vs. Cook, 20 Wis., 358.
    
      Principal for default of agent, without authorization or ratification. Goddard vs. Grand Trunk R. R. Co., 57 Me., 202; Atlantic and G. W. Co. vs. Dunn, 19 O., 162; 86 Ill., 455; 114 Mass., 518.
    If the jury find a proper case for exemplary damages, the jury have the right to fix the amount, which will not be disturbed unless so disproportionate as to warrant the belief that the jury must have been influenced by partiality or prejudice. Hilliard on New Trials, 562, et seq.
    
    ' In general, where there is no certain measure of damages, the court will not disturb the verdict, except for prejudice, passion, or corruption in the jury, and where the verdict is palpably against the evidence. Id., 563, 567, 578.
    If the conductor authorize another conductor in the service of the company, and wearingft the uniform of the company, to act for him, the company is liable for the negligence of such employee. Carson vs. Leathers, 57 Miss., 650.
    If he had no power to stop the train, it is admitted that it was his duty to notify the conductor of the assault. It amounts to the same thing.
    The case in 34 Connecticut, Flint vs. Transportation Co. was a case of exemplary damages, and was decided by a U. S. court. 13 Wall., 3.
    R. T. Merrick and George E. Hamilton for defendant:
    The allowance of exemplary damages is the exception and not the rule. In many of the States it is held that such damages should not be allowed unless the injury complained of is the result of the toilful and malicious act or conduct of the agent authorized or approved by the company. Cleghorn vs. R. R. Co., 56 N. Y., 44; Travers vs. R. R. Co., 63 Mo., 421; Bass vs. R. R. Co., 42 Wis., 654; R. R. Co. vs. Hammer, 72 Ill., 347.
    And the extreme limit to which the courts have gone in the direction of favoring exemplary damages in such cases has been to hold that the allowance by way of damages of anything more than a fair and adequate pecuniary indemnity for the wrong or injury suffered should never be made, except in cases when the injury complained of has been inflicted maliciously or wantonly; that the wrong must he aggravated hy the evil motive, and on this rests the rule of exemplary damages. R. R. Co. vs. Larkin, 47 Md., 155; R. R. Co. vs. Armes, 91 U, S., 489.
   Mr. Justice Cox

delivered the opinion of the court.

This is a case in which the plaintiff went upon the cars of the defendant and on first attempting to enter was forbidden to do so by another person. He appealed to the conductor, who took him into the car and gave him a seat. Immediately afterwards he was assaulted by this other man, and he says he appealed to the conductor for protection, but instead of protecting him he says the conductor insulted him, and left h|m to his fate, and he was ejected from the car in a rather pitiable condition.

We have gone over this case generally, and have examined the instructions given by the court, and do not find any error in the ruling of the court on the whole question presented. One of the principal questions submitted was whether exemplary damages could be awarded by the jury in favor of the plaintiff. We are not favorable to the doctrine of exemplary damages against a corporation, but we cannot close our eyes to the fact that the Supreme Court has recognized with approval the decisions of the State courts to the effect that when the agents of a railroad company are guilty of conduct which is malicious or is intentionally negligent, so as to amount to a reckless disregard of the rights of passengers, a jury may award exemplary damages, and we think that the law, as applicable to the facts in this case, was properly presented by the court to the jury. There was evidence tending to show, in the case under consideration, that the agent of the defendant was guilty of wilful and intentional neglect.' There is, however, one question still left open. A motion was made for a new trial in this case on the. ground of excessive damages. That motion was overruled and an appeal was taken which brings before us the question of excessive damages.

The jury awarded the plaintiff in this case in their verdict, damages to the amount of five thousand dollars, at least ten, if not twenty times, as much as would have actually covered all the damages he received and would have been ample compensation to him we think. All in excess of this is merely a fine imposed upon the company which goes into the pocket of the plaintiff.

It is claimed that where exemplary damages are given by a jury the court will not interfere in the matter. The court does hesitate to interfere in this respect, particularly in certain cases, such as slander, libel, &c. In those cases we seldom intefere with the verdict rendered by a jury, where the damages are almost always exemplary. Still, when we think the verdict rendered, is out of all proportion to the injuries received, we feel it our duty to interfere. In this case we do not hesitate to say that we regard this verdict as grossly excessive. We think that five hundred dollars would have been an ample amount for the injury sustained, and we regard all in excess of that amount as merely a punishment of the defendant. We have therefore concluded to grant a new trial unless the plaintiff will remit thirty-five hundred dollars of the amount awarded and let the verdict stand at fifteen hundred dollars.  