On appeal from a judgment of the Supreme Court.
For the defendants-appellants, Hobart & Minard.
For the plaintiffs-respondents, Kent & Kent.
The opinion of the court was delivered by
DONGES, J. This appeal brings up two judgments of the Supreme Court in two cases tried at the Bergen Circuit. The trial resulted in a verdict for the plaintiff Darrah for $1,000 and the plaintiff Alsten for $400 against the three defendants Hocke, Greendyke and Erie Railroad Company. The suits were brought, one against the Erie Railroad Company by both plaintiffs, and one against Hocke and Greendyke by both plaintiffs. They were consolidated for trial.
It appears beyond dispute that the plaintiffs were trespassers upon a moving freight train of the Erie Railroad; that they boarded it at Secaucus and when they were approaching Allendale the defendants Hocke and Greendyke, with revolvers in hand, were standing beside the railroad demanding that the plaintiffs and ten or twelve other trespassers upon a flat car in the train get off the freight train. The testimony on behalf of the plaintiffs was that some person fired shots which whizzed over the car on which the plaintiffs were sitting; that these shots came from the direction of the defendants Hocke and Greendyke when they were beside the tracks. After the firing began, Hocke was observed on the roof of a box car next to the flat car on which the plaintiffs were riding. Darrah successfully got off the flat car and was moving into the woods beside the railroad right of way when he was shot in the thigh, the ball entering the right thigh from the inside and passing almost through the leg. Alsten, in jumping from the train, broke his foot or leg.
The theory of the complaints on behalf of the plaintiffs was that the individual defendants were the servants and agents of the Erie railroad, which is not disputed, and that as such agents and servants, in carrying out the instructions of the employer, they used more force, violence and threats than were necessary to eject the trespassers from the train.
The railroad company makes much of the failure of the plaintiffs to identify the individual who fired the shot that struck Darrah, but this is unimportant inasmuch as admittedly both defendants were engaged in a common enterprise of chasing the plaintiffs, so that if either, in this situation, fired the shot that struck Darrah, both would be liable. Likewise as to the plaintiff Alsten, if they used more force than was necessary to eject him from the train, then their acts were willful and both those participating in the episode of the shooting and the employer would be liable.
It is true that the testimony as to who fired the shot is not definite, but it does appear that both of the individual defendants had revolvers in their hands. The testimony is that the revolvers were furnished to both Hocke and Greendyke by the Erie Railroad Company. Greendyke was seen to fire from the ground, although there is no certainty that a shot from his revolver struck Darrah. While perhaps the testimony is not definite that Hocke fired shots, he was seen on the box car and on the ground holding a smoking revolver, so the necessary inference is that he had fired shots.
In the situation presented, we conclude that there was a jury question presented as to the use of excessive force in the circumstances. Certainly the shooting of Darrah after he had left the train, if not the railroad property entirely, was a show of excessive force; and if, as Alsten says, he became scared and was put in such fear from the firing of revolvers in his direction that he jumped without the precaution of leaving by the ladder, which was being used by other trespassers, or because of fear engendered by the shooting of revolvers, neglected to use the care he otherwise would have used for his safety, there was evidence from which a jury question as to the use of excessive force was presented and as to whether the injuries resulted therefrom. West Jersey and Seashore Railroad Co. v. Welsh, 62 N.J.L. 655; Letts v. Hoboken Railroad, &c., Co., 70 Id. 358; Dierkes v. Hauxhurst Land Co., 80 Id. 369. In this situation the motions to nonsuit and direct a verdict for defendants were properly denied.
The other questions relate to alleged errors of the court in its charge. The first is the refusal to charge ...