44 Kan. 394 | Kan. | 1890
The opinion of the court was delivered by
J. C. Dwelle was expelled from one of the trains of the Atchison, Topeka & Santa Fé Railroad Company on April 13, 1887, for the reason that he refused to pay the fare which the collector of the train demanded of him. He took passage on the train at the station of Cedar Grove for the purpose of going to Florence, a distance of six miles. He reached Cedar Grove about the time of the arrival of the train, and after the station agent had left the ticket office and gone to the forward part of the train to assist in loading the baggage that was being taken on at that station. There was no one in the ticket office at the time from whom he could have purchased a ticket. After boarding the train,- the collector demanded his fare, when Dwelle tendered thesum of twenty cents. The collector informed him that as he had no ticket he must pay ten cents in excess of the regular fare, which was eighteen ■cents. Dwelle claimed that the excess could not be collected, for the reason that there was no one in the ticket, office from
Error is assigned on the refusal of the court to instruct the jury that if the ticket office at Cedar Grove was open for the sale of tickets for thirty minutes prior to the schedule time for starting the train, and the plaintiff failed to purchase a ticket during that time, and did not tender a ticket upon the train, that he was bound to pay the excess fare; and further, that the defendant was not bound to keep open its ticket office after the schedule time for the starting of the train. Testimony was offered tending to show that the train from which Dwelle was ejected was about ten minutes .behind-time when
“This act shall not apply to any passenger taking passage on. any railroad train (¡rom any station) at which such railroad company fails to keep tickets for sale, or at which such company shall neglect or fail to keep its ticket office open for the sale of tickets at least thirty minutes immediately prior to the starting of such train.” (Laws of 1886, ch. 139.)
Whether the tender of tk' excess was made by Dwelle before any steps were taken to remove him from the train, is also a disputed question by the evidence. The court properly ruled that —
2. Tender of fm-e bé%í-o'nect instruction. “If he refused when demanded to pay the fare he knew, or ought to have known was justly due, and persisted in such refusal until the company in the exercise of its right to expel him therefor had taken the necessary steps to put him off, as by commencing to stop the train, or seizing his person if such seizure was necessary, such plaintiff was a trespasser, and by such acts and conduct re]¡eved the company of its obligation to carry him, and he could not reimpose such obligation on the company by making a tender of the sum due after having once refused it for the purpose and under the circumstances stated, and having put the company to the trouble of the performance of acts necessary to his safe and proper expulsion; but notwithstanding such refusal for such purpose and under such ■circumstances, if the plaintiff, prior to the taking of such steps by the company to expel him, tendered the proper amount to the proper employé, he was bound to accept it and permit the plaintiff to ride.”
“But on the other hand, if you believe from the evidence in the case that the plaintiff refused to pay the amount demanded of him, but that such refusal was not for the purpose of defrauding the company or unjustly witholding its legal dues, or vexing, annoying, delaying or putting to inconvenience the company’s employés, but was done in good faith, under a mistaken belief that he was under no legal obligations to pay all that was demanded, and such honesty of purpose and belief was apparent from the manner, temper, demeanor and conduct of plaintiff, and the circumstances of the case, the company was bound to accept the sum previously refused if tendered at any time before the actual expulsion, or after such expulsion and before the starting up of the train.”
It is contended that the motive of the passenger, or whether he acted in good faith and under a mistaken belief that an unjust demand had been made of him, cannot affect the case. It is said that the person in charge of the train must, in the interest of the public as well as the company, act promptly, and should not be required to take the ex parte statements of the passenger in regard to whose fault it was that no ticket was purchased. It is claimed in the present case that the collector did inquire of another passenger who came upon the train at the same station, and learned from him that the office was open and that tickets could have been purchased there. It is further urged that it is unreasonable to compel a conductor to institute an investigation as to the motives of a passenger, whether he is acting in good faith and under a mistaken belief that he was tendering all the fare that could be rightfully required of him; but his proper course when the collector insisted on the payment of the excess was to pay the fare demanded, and afterward, when opportunity is given for investigation, to apply for a refund or seek redress against the company. The following eases are cited as supporting the contention : Railroad Co. v. Nichols, 8 Kas. 505, 519; Railway Co. v. Rice, 33 id. 398, 401; Railroad Co. v. Gants, 38 id. 608, and cases therein cited.
It is next urged that the verdict was excessive, and was given under passion and prejudice due to the misconduct of the prevailing party. There is good .reason for this complaint. The misconduct referred to was the statement of matters not pertinent to the case, and which were calculated
In the course of the argument, counsel from the plaintiff below read from the case of Railroad Co. v. Weaver, 16 Kas. 462, and over the objection of the opposing party. That portion which was read contained expressions of the opinion of the writer with regard to the rule of accountability of railroad companies, and also of the conduct of the servants and employés of railroad companies toward the public. If the law of -the Weaver case is pertinent and proper, it should have been presented to the jury in the charge of the court. The- statement of what purports to be facts in the opinion
“My judgment is, gentlemen, and it has been since (he*410 verdict and findings were returned, that the amount of damages awarded in this case is excessive, and, considering the argumeut of counsel to the jury, might have been given under the influence of passion and prejudice. Upon that point I fear that I committed error myself in allowing the address of plaintiff’s counsel over the protest and objections of the counsel for the defense. It struck me throughout as being heated and inflammatory, and calculated to arouse the passion and prejudice of the jury. It struck me at the time as being a character of address that would be difficult for a jury, unless exceptionally discreet and fair-minded and strong-minded, to resist.”
The judgment of the district court will be reversed, and the cause remanded for a new trial.