86 Ga. 641 | Ga. | 1891
The learned counsel for the railroad company argued only four of the grounds of the motion for a new trial. To these our opinion will be confined.
(a.) Although the conductor neither used physical force to expel the plaintiff from the train nor was immediately present when the plaintiff left the train at Conyers, yet it was in fact an expulsion if the plaintiff alighted against his own will and as an act of obedience to the conductor’s previous command. Nor does it matter whether the command was given shortly before the train arrived at Conyers, or after its arrival, provided it was or seemed to be peremptory and the plaintiff so understood and treated it. There was evidence from which the jury could infer that the command appeared peremptory, and that the plaintiff' yielded to it in good faith. Whilst a passenger cannot avail himself of a formal order of the conductor, not meant to be absolute and final, as a pretext for leaving the train and grounding an action against the company for expulsion, yet, where the circumstances fairly warrant him in believing that the conductor means what he says, and he really does believe it, he need not wait for the employment ot actual force against him,-but may submit to the moral coercion of the conductor’s authority, and may abandon the train as an expelled passenger. If conductors do
But as soon as the act of expulsion was complete, the plaintiff became subject to the rule of diligence to which we have just referred. The expulsion was not at night but in the afternoon. It affirmatively appears that he had money enough to procure transportation by the same train from Couyers to Social Circle, the distance being twenty-one .miles. Perhaps he might be excused for not taking passage on that train, but after spending the night at Covington, he still had money enough, and more than enough, to pay his way and
A new trial, however, is ordered upon the one ground only, that of the excluded evidence.
Judgment reversed.