Alabama & Vicksburg Railway Co. v. Kuhn

78 Miss. 114 | Miss. | 1900

Calhoon, J.,

delivered the opinion of the court.

Code 1892, § 1272, which denounces a penalty for getting on or off a moving train, especially excepts passengers and train employes from its operation. The plain and uncontradicted facts of the record are that Mr. Kuhn was a passenger on a train of appellant to his destination, the city of Vicksburg. While the train was in motion in that city, Mr. Kuhn, who was a traveling man, according to his custom, at a point convenient to him, stepped off. On the same train was an employe of the appellant, named Johnson, whose duty it was, by direction of the company, through its superintendent, to get on all trains at certain points, and observe and cause to be arrested and tried all persons jumping on or off a moving train. His instructions made no exception in favor of passengers. The next morning after Mr. Kuhn had stepped from the train, Mr. Johnson made an affidavit before a justice of the peace, charging him with wilfully jumping from a moving train. This affidavit was void and charged no offense, in that it did not charge that Mr. Kuhn was not a passenger or employe. Nevertheless, on it the justice issued his warrant of arrest, and his special constable arrested Mr. Kuhn and marched him to the office of the justice of the peace, where he was tried under the prosecution of appellant, through its employe, Johnson, ■ convicted by the justice, and sentenced to pay a fine, and, in default of its payment, that he be sent to jail, and he found it difficult to obtain time to make an appeal bond. But for the intervention of a bystander, it seems he would have been incontinently hurried off to jail. He was restrained of his liberty about one hour and a half. On his appeal, the case against him was, of course, dismissed. Pending his appeal, he saw Mr. Ford, the superintendent, who laughed at him, and said the arrest was under his general instructions to the employe, Johnson, and that the railroad had a law of its own — to arrest all persons jumping from moving trains. The fact of the arrest was published in the newspapers. One of the expressions of the superintendent, when he laughed at Mr. Kuhn, was, “ that this is the way we do people who jump off trains.” The record of the justice of the peace shows a plea of guilty. If there had been, it would have been a plea of guilty to a charge setting 'out no offense. But in fact, uncontradicted, there was no such plea. On the contrary, there was a trial, witnesses produced on both sides and examined, and Mr. Kuhn had the train conductor to testify that he was a passenger who had paid his fare, and the statute was read to and ignored by the justice. Mr. Kuhn brought his action for false imprisonment, and the court charged the jury to find for him and assess the damages sustained because of his wrongful arrest, and the verdict gave him $500 damages.

The arrest was reckless and wanton, and, under the facts disclosed by the record, it is idle to discuss questions of probable cause or express malice. The damages awarded were extremely reasonable, even as compensation. If a railroad company may with impunity arrest its own passenger, whom it is its business to protect, in the teeth of the express saving clause of the very statute under which it professes to proceed, and subject him to the indignity of public seizure of his person, and being marched along the public streets by a constable for trial under its prosecution, and subjecting him to the mortification of publication in the newspapers, as the usual result of such proceedings, then the protection of personal liberty is slight indeed.

The action of the court helow and the action of the jury are in all respects approved, and the case affirmed.