No. 2,384 | 8th Cir. | Mar 25, 1907
This was an action against a railroad company for the wrongful ejection of a passenger from one of its trains. Briefly stated, the case presented by the evidence was this: The plaintiff, while riding upon a north-bound passenger train of the defendant, was ejected therefrom, between the stations of Choteau and Pryor Creek, upon his failure to produce a ticket, or other evidence of a right to transportation, or to pay his fare, when requested to do so by the conductor. He had entered the train at Cho-teau, or at Eufaula, a more southerly station, and his destination was Adair, a station north of Prior Creek. He had no ticket or other evidence of a right to transportation, and was not intending or prepared to pay his fare. After the process of ejection had begun, and before its completion, a third person volunteered, with the plaintiff’s assent, to pay his fare from the point at which he had entered the train to Pryor Creek. The conductor rejected this offer, saying, in
Upon the ground that they had not been set out with sufficient detail or precision in the motion for a new trial in the trial court, the Court of Appeals declined to consider some of the rulings and instructions to which exceptions were reserved, as before stated. In this we think there was error. When the motion for a new trial was presented and ruled upon, and when the appeal was perfected, rule 3 of the Court of Appeals provided: "
“And this court will consider any and every ruling or action of any of the district courts of this territory to which objection or exception was made or taken at the time of the trial, as the same is shown in the record in any given cause, irrespective of the fact whether such ruling or action of the court be set out especially in the motion for a new trial or not, provided that such ruling or action be set out in the assignment of errors, as required in paragraph 3 of rule 10.” Ind. T. Ann. St. 1890, p. 937.
The rulings and. instructions before named, with the exceptions thereto, were shown in the record by a proper bill of exceptions and were particularly and separately set out and asserted to be erroneous in the assignment of errors contained in the appellant's brief, as required by paragraph 3 of rule 10. True, after the appeal was perfected, rule 3 was changed in respect of the manner in which errors claimed to have been committed at the trial should be specified in the motion for a new trial; but this change, whatever may be its prospective operation, did not and could not affect cases in which it was not possible to comply therewith by reason, of their having theretofore passed beyond the stage of a motion for a new trial. This case was in that situation, and the Court of Appeals should have considered and disposed of it in conformity with the original rule. .
Two of the instructions to which exceptions were reserved were treated by the Court of Appeals as properly presented for its consideration, and it was held that neither gave cause for reversal. One of these was as follows:
•‘The court instructs the jury that if they find from the evidence that, before the train was stopped, some other person or persons offered to pay the*611 fare of the plaintiff due to defendant, to the conductor in charge of the train of the defendant company, that said fare so offered cannot be refused, no matter who makes it, and you should find for the plaintiff and against the defendant”
In the absence of a regulatory statute' — -and there is none here— when a passenger refuses or fails to produce evidence of his right to transportation or to pay the lawful fare, after due demand therefor, and after being accorded reasonable time and opportunity for compliance, he forfeits the rights of a passenger, and subjects himself to ejection from the train. And while there is some contrariety of opinion respecting the effect of a subsequent tender of compliance, the better and prevailing rule is that, when the refusal is willful, persistent, or capricious, or proceeds from a fraudulent purpose to evade paying for transportation to which he knows he is not otherwise entitled, the passenger cannot, by recanting and tendering compliance, after the process of ejection has begun, entitle himself to transportation and render the completion of the ejection wrongful. State v. Campbell, 32 N. J. Law, 309; Railroad Co. v. Skillman, 39 Ohio St. 444; Pease v. Railway Co., 101 N.Y. 367" court="NY" date_filed="1886-02-09" href="https://app.midpage.ai/document/pease-v--d-l-wrr-co-3580411?utm_source=webapp" opinion_id="3580411">101 N. Y. 367, 5 N. E. 37, 54 Am. St. Rep. 699; Clark v. Railroad Co., 91 N.C. 506" court="N.C." date_filed="1884-10-05" href="https://app.midpage.ai/document/clark-v-wilmington--weldon-railroad-3667054?utm_source=webapp" opinion_id="3667054">91 N. C. 506, 49 Am. Rep. 647; Railroad Co. v. Asmore, 88 Ga. 529" court="Ga." date_filed="1892-02-15" href="https://app.midpage.ai/document/ga-southern--fla-railroad-v-asmore-5564485?utm_source=webapp" opinion_id="5564485">88 Ga. 529, 15 S. E. 13, 16 L. R. A. 53; Railroad Co. v. Garrett, 8 Lea (Tenn.) 438, 41 Am. Rep. 640; Railroad Co. v. Harris, 9 Lea (Tenn.) 180, 42 Am. Rep. 668; Garrison v. Railway Co., 91 Md. 347, 55 A. 371" court="Md." date_filed="1903-06-29" href="https://app.midpage.ai/document/garrison-v-united-rys--electric-co-3486256?utm_source=webapp" opinion_id="3486256">55 Atl. 371, 99 Am. St. Rep. 452; Harrison v. Fink (C. C.) 42 F. 787" court="None" date_filed="1890-06-21" href="https://app.midpage.ai/document/harrison-v-fink-9305700?utm_source=webapp" opinion_id="9305700">42 Fed. 787; 2 Hutchinson on Carriers (3d Ed.) § 1085; 4 Elliott on Railroads, § 1637. When the tender is made by^a third person, with the passenger’s assent, it will be effective, or otherwise, in like manner as if made by him. Railroad Co. v. Garrett, 8 Lea (Tenn.) 438, 445, 41 Am. Rep. 640.
Tested by these rules, the instruction not only did not contain a correct statement of the law, but, when applied to the case made by the evidence, as before recited, was calculated'to operate prejudicially to the defendant, because it erroneously gave the jury to understand that, even though the plaintiff’s refusal or failure to comply with the conductor’s lawful demand proceeded from a fraudulent purpose to evade paying for transportation to which he knew he was not otherwise entitled, a subsequent offer by a third person to pay his fare, made after the process of ejection had begun and before the train was brought to a stop, would entitle him to transportation, and would render the completion of the ejection wrongful.
The other instruction related to the measure of damages, and was as follows:
“The elements that go to make up the damages which the jury is to consider in this caso, and which the plaintiff may be entitled to receive, are: Loss of time, humiliation in being put off of the train of the defendant company, and the inconvenience of being compelled to reach his destination by other means, together with any suffering of mind and of body that he was compelled to undergo by reason thereof, and any and all damages sustained by him as the direct and natural consequence of the fault of the said defendant company, in tlve event that you find from the evidence that the plaintiff was wrongfully and unlawfully evicted from the train.”
■ As there was prejudicial error in each of these instructions, the judgment of the Court of Appeals and that of the trial court are reversed, and the case is remanded to the trial court, with á direction to grant a new trial.