Close obtained a judgment against the railroad company for $800, for wrongfully ejecting him from one of its passenger trains. The company appeals and relies for the reversal of the judgment upon grounds assigned in the motion for a new trial.
It was shown by the evidence that appellant’s railroad runs through the village of Redkey, in Jay county, and through the city of Muncie, in Delaware county. In March, 1891, appellee resided with his family at the village of Dunkirk, about five miles from Redkey, but he was engaged as a laborer in a glass manufactory at Muncie. His employment required him to work nights, and it was his custom to go to his home Saturdays and return to his work on the following day, which he usually did by taking passage on a passenger train leaving Redkey for Muncie on appellant’s road, a few minutes after noon, and he then remained at Muncie until the next Saturday. The regular ticket fare from Redkey to Muncie was fifty-five cents, but appellant had a rule requiring passengers, without tickets, to pay ten cents extra, which rule was known to appellee. On a Sunday in March, 1891, appellant walked from his home at Dunkirk to Redkey, for the purpose of obtaining transportation upon the noon train to Muncie, that being the only train which would convey him to Muncie in time to enter upon his work, which commenced at 6 o’clock p. M. There was evidence fairly authoriz
The first point pressed upon the notice of this court is the alleged misconduct of appellee’s counsel in the argument of the cause to the jury. It appears from the bill of exceptions that in the course of his argument, while discussing the manner in which appellee was expelled from the train, counsel made use of this language: “And so I think, gentlemen of the jury, that the conduct of this conductor and these railroad employees shows that they have become like the corporation for whom they work; that they have become so hard-hearted and unfeeling that they have no charity for their fellow-man.” The statement was objected to at the time, but the court overruled the objection, with the observation that it was fairly justified by the evidence. It is not practicable to confine arguments in the trial of a cause to a punctilious observance of the rules of debate, but they must be left in some measure to the sense of honor and duty of the advocate, under the discretionary control of the trial court, and there must have been a clear violation of the rules of fair discussion to justify an appellate court in disturbing a judgment upon that ground. Postel v. Oard, 1 Ind. App. 252.
In the present case, the sense of degradation and shame appellee experienced in being expelled from the train in the presence of other passengers, was an important factor in estimating his damages, and the manner of his expulsion was certainly a legitimate subject of comment. The remarks
It is next insisted that the damages awarded by the jury are excessive, in that appellee should not have been allowed anything for the injury resulting from his walk to Muneie. The argument is that such injury is consequential, and too remote to be charged to the wrongful expulsion of appellee.
There is a decided conflict among the authorities upon this question, both sides having the support of adjudications of high standing and respectability. It is conceded by all that the perpetrator of a wrongful act is answerable for all of the injurious consequences that flow from such act in the natural and ordinary course of events, though they may be promoted or enhanced by intervening causes, provided the original wrongful act is responsible for the intervening causes. This doctrine was first declared in the famous case of Scott v. Shepherd, 2 W. Bl. 892, and is now generally recognized, but the difficulty lies in its application.
In the present case appellee was wrongfully ejected from the train, at some distance from any station, and it. was to have been expected that he would do that which common prudence would dictate, considering all of the surroundings. In view of his situation, the jury had the right to infer that his conduct in walking to Muneie was entirely natural and reasonable. His expulsion from the train was the proximate and responsible cause of his fatiguing journey on foot, and that in turn augmented his afflictions. The original wrongful act was, in the sense of the law, directly responsible for the train of injuries caused by it, including any illness or exhaustion resulting from the long walk.
The same application of the doctrine was made in Brown v. Chicago, etc., R. W. Co., 54 Wis. 342; East Tennessee, etc., R. R. Co. v. Lockhart, 79 Ala. 315; International, etc., R. R. Co. v. Terry, 62 Tex. 380; New Orleans, etc., R. R. Co. v. Hurst, 36 Miss. 660.
The theory of this case is that appellant had no right to deny appellee the privileges and protection of a ticket passenger, because he was without a ticket through the wrong of appellant’s agent. It is only where a railroad company affords a reasonable opportunity to a passenger to purchase a ticket that it will be allowed to charge such passenger a higher rate of fare because he is without a ticket. Such opportunity was not afforded in this case, and in view of the circumstances attending the case as a whole, it can not be said that the damages are excessive.
It is finally claimed that the court erred in refusing certain instructions requested by appellant. The bill of exceptions shows that these instructions, at the time they were rejected, were not signed either by appellant or its attorneys, but they were signed after the jury retii’ed for deliberation. Section 533, R. S. 1881, requires all instructions requested
In reviewing the action of a trial court, regard must always be had to the condition of the record at the time such action occurred, and if it can be supported by any substantial reason or fair presumption it will be upheld. This court may presume that the court below rejected the proffered instructions because they were not signed.
The judgment is affirmed.