Edmunds v. Atchison, Topeka & Santa Fe Railway Co.

MELVIN, J.

The Atchison, Topeka and Santa Fe Railway Company (a corporation) appeals from the judgment and from an order denying its motion for a new trial.

The plaintiff, Edward G-. Edmunds, was engaged in the business of selling "newspapers in the city of Bakersfield. He had been ordered by John Lambert, a special policeman in the employ of the appellant corporation, not to offer for sale or to sell papers at the station or on the right of way of the company in Bakersfield. The officer, on the theory that Edmunds had violated this order, forcibly ejected him from the right of way. Edmunds brought suit for damages against Lambert and the Atchison, Topeka and Santa Fe Railway Company. Later the complaint was dismissed as to Lambert and the San Joaquin Valley Railway Company, appellant’s lessor, was substituted as a party defendant. The case was tried by a jury and a verdict for four thousand dollars as damages was returned against appellant alone, the court giving judgment accordingly.

Appellant insists that the evidence shows without contradiction that no more force than was necessary was used to eject plaintiff from its premises, but we think there was a substantial conflict of testimony regarding the amount of force used. The verdict is also attacked as excessive and several other reasons are urged for reversal, but we need not consider all of these in detail, as we must reverse the judgment and order because of misdirection to the jury.

The court permitted the plaintiff to introduce in evidence, without previous notice to appellant and demand for a production of the original, a carbon copy of a letter written and sent by plaintiff’s counsel to one of the counsel for the Santa Fe company. The ruling was based upon the fact that plaintiff also produced a letter written by Mr. Camp, appellant’s solicitor, which was apparently an answer to one written by plaintiff’s counsel who testified that up to the date of the receipt of Mr. Camp’s communication he had written to the company but one letter, of the body of which the offered

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carbon was a correct copy. The ruling was proper and is supported by the authority of

Pratt

v.