108 Ind. 548 | Ind. | 1886
This action was instituted by the appellee against the appellant to recover damages for refusing and neglecting to carry him and his family to a station on the line of appellant’s railroad, for which he had purchased tickets.
The evidence, so far as it is material to the question presented, is substantially this: When the conductor of the train took the tickets from the appellee, he directed the appellee and his family to leave the car in which they were seated and
The jury awarded the appellee seven hundred dollars damages, and the appellant moved for a new trial, assigning as a cause that “ the damages are excessive.”. The only point, as counsel for the appellant say, “ that is available for the appellant, is that the damages are excessive.”
It is insisted by the appellee’s counsel that the action is not for a breach of contract, but that it is an action to recover damáges for a tortious breach of duty, and that it is so recognized and treated in the motion for a new trial. The position of appellee is substantially this: If the action is for a breach of contract, then there is no cause assigned in the motion for a new trial presenting the question of error in the amount of recovery, for, in such cases, the cause for a new trial should be stated as “error in the assessment of the
It is the general rule, and one that has long prevailed in this State, that the wrongful refusal or failure of a common carrier to carry passengers is a tort for which an action will lie. Cincinnati, etc., R. R. Co. v. Eaton, 94 Ind. 474 (48 Am. R. 179); Lake Erie, etc., R. W. Co. v. Fix, 88 Ind. 381 (45 Am. R. 464); Toledo, etc., R. W. Co. v. McDonough, 53 Ind. 289; Jeffersonville R. R. Co. v. Rogers, 28 Ind. 1; Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116 (10 Am. R. 103).
It may, perhaps, be true that it is not every case in which the refusal of a carrier to carry passengers who have rightfully entered its train to their destination can be deemed a tort, but we need not now attempt to distinguish between the cases—if, indeed, there is any ground for distinction—where the action will be deemed one for a breach of contract and one for the recovery of damages for a tort, for the appellant has treated the action as one in tort, and we must so decide it, and especially as there are facts which at least tend to constitute the wrong of the appellant a tort.
As the action is to be deemed one in tort, we can not, under a firmly established rule, interfere with the verdict of the jury unless the amount is so “ outrageous as to strike every
Judgment affirmed.