110 P. 1059 | Okla. | 1910
The following questions on this record are essential for determination:
(1) Did the court err in excluding what was said by other parties to the conductor after the controversy arose, but before the final ejection from the car, between him and the plaintiff in error as to his having bought a ticket?
(2) Did the court err in instructing the jury that the plaintiff in error was not entitled to recover punitive or exemplary damages, sometimes called "smart money"?
(3) Did the court err in giving instruction No. 8, in part as follows:
"Likewise, if he attempted to board the train on the rear end of the Pullman or sleeper, after the train had started to move, and after the doors were closed, he had no right to board that train, and if he sustained any injuries while attempting to get on the rear end of the train while it was moving out of the station, or about to move from the station, and if he thereby sustained any injuries, the company would not be liable for such injuries."
1. The following proceedings were had:
"Q. State what happened to you when you were being put off. A. Well, there were five or six told the conductor I had a ticket and they saw me buy it. Mr. Green (attorney for defendant in error): We object to what other people said. The Court: Objection sustained. * * * Q. State if any person other than yourself informed the conductor that they had seen you buy the ticket. A. Yes, sir. Mr. Green: To which the defendant objects. The Court: Objection sustained."
A drummer by the name of Miller testified that, before his (plaintiff in error S. H. Moore's) ejection from the car was consummated, "I myself told the conductor * * * that I saw Mr. Moore give him a ticket. I told him that another gentleman says, I saw him buy the ticket. * * * Part of this conversation arose while they were taking him from the seat. I told the conductor I saw him give him a ticket, and another gentleman by the name of Robinson told him that he saw him buy a ticket, and after a little Mr. Robinson vouched that he saw him buy the *685 ticket at Salina, Kan., and there was 13 people in the crowd that Mr. Robinson was at the head of and they all vouched for seeing him buy the ticket. Q. Did they say that to the conductor?" On objection the court ruled that "What the witness (Miller) told Wilcox (the conductor) is competent." "Mr. Harris (attorney for defendant): I ask that the statements of the witness outside of any statements to the conductor with reference to having seen the ticket purchased be stricken out as incompetent. The Court: Objection sustained as to the other statements except that of the witness."
The question of the good faith of the conductor in ejecting the plaintiff from the train was an issue submitted to the jury, and if, as a reasonable person, he ejected the plaintiff from the train, honestly believing that he had not delivered him a ticket, the jury were justifiable in finding that he acted in good faith. The following special questions were submitted to the jury:
"Q. 2. Do you allow anything for injury to plaintiff's feelings, and, if so, how much? A. Sixty dollars ($60.00).
"Q. 3. Did the conductor, porter, or brakeman use any violence towards the plaintiff at the time he was first ejected? A. To a limited degree.
"Q. 4. How much do you allow plaintiff by reason of the violence used by the conductor, brakeman, or porter? A. Nothing.
"Q. 5. How much do you allow plaintiff for actual injuries? A. Nothing except mental injury.
"Q. 6. How much do you allow plaintiff for loss of time? A. Two dollars ($2.00).
"Q. 7. How much do you allow plaintiff for inconvenience in remaining over in Derby? A. Two dollars ($2.00).
"Q. 8. Was it the custom of the conductor to give a check to a passenger for his ticket? A. Sometimes.
"Q. 9. Did the conductor act in good faith, and with an honest belief that the plaintiff had not paid his fare to Perry? A. Yes.
"Q. 10. Did the conductor or any of the other employees act in a malicious or wanton manner toward the plaintiff? A. To a limited degree.
"Q. 11. How much time did he lose? A. One day. *686
"Q. 12. What was his time worth per day? A. Two dollars ($2.00)."
The general verdict was in favor of the plaintiff on all the issues, assessing the amount of his recovery at the sum of $66.85. As to admissibility of said evidence see section 1789, vol. 3, Wigmore on Evidence (1904).
The conductor testified, in substance, that he did not remember the witness Miller telling him that he saw the plaintiff give him a ticket; that he might have said it; that he would not deny that such statement was made, but, if it was made, he had no recollection of it. The conductor further testified in haec verba.
"No, they said he had been riding on the train. They had seen him on the train. I do not deny that the passenger bought a ticket. I do not deny that. I did not question that at the time. The question was whether two men were riding on it or not. I wanted my receipt for my ticket to Perry, which I had given the passenger if he gave me a ticket to Perry. I work my train carefully and still know what I am doing. I have had lots of experience in that line."
The witness Miller having been permitted to testify that he told the conductor that he saw the plaintiff (Moore) give him a ticket, and the conductor having stated to the jury at the time that he ejected the plaintiff from the train that he did not question the fact that he (plaintiff in error) had bought a ticket at the initial point of his journey, but what he did question was as to whether the same had been delivered to him by the plaintiff, etc., and, if so, where the hat ticket he gave him was, conceding, but not deciding, that the excluded statements were admissible, we fail to see wherein there was any prejudicial error thereby committed against the plaintiff in error.
2. This action arose under the territory of Oklahoma, having been tried in the lower court prior to the erection of the state, and after such date, an appeal therefrom being prosecuted to this court, it was an existing suit, not finally determined.
Section 1 to the Schedule of the Constitution of Oklahoma provides that no existing rights, actions, suits, proceedings, contracts, *687 or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place.
In St. Louis San Francisco Railroad Co. v. Coundieff, 171 Fed. 319, 96 Cow. C. A. 211, it is said:
"Construing all of these provisions together, we are of opinion that they do not change, and were not intended to change, the method of procedure in cases pending in the courts of Indian Territory and of the territory of Oklahoma, but that the civil cases pending in the Indian Territory should, after statehood, continue under the law in force in the Indian Territory, and under that law no reply was required, prior to statehood. We do not think that the provision of the Constitution relied upon by the railroad company so changes the situation as to make a reply necessary."
In Freeman v. Eldridge, infra,
In Lakeshore Michigan, etc., R. Co. v. Prentice,
"The law applicable to this case has been found nowhere better stated than by Mr. Justice Brayton, afterwards Chief Justice of Rhode Island, in the earliest reported case of the kind, in which a passenger sued a railroad corporation for his wrongful expulsion from a train by the conductor, and recovered a verdict, but excepted to an instruction to the jury that 'punitive or vindictive damages, or smart money, were not to be allowed as against the principal participating in the wrongful act of the agent, expressly or impliedly, by his conduct authorizing it or approving it, either before or after it was committed.' This instruction was held to be right, for the following reasons: 'In cases where punitive or exemplary damages have been assessed, it has been done upon evidence of such willfulness, recklessness, or wickedness, on the part of the party at fault, as amounted to criminality, which for the *688
good of society and warning to the individual ought to be punished. If in such cases, or in any case of a civil nature, it is the policy of the law to visit upon the offender such exemplary damages as will operate as punishment and teach the lesson of caution to prevent a repetition of criminality, yet we do not see how such damages can be allowed, where the principal is prosecuted for the tortious act of his servant, unless there is proof in the cause to implicate the principal and make him particeps criminis of the agent's act. No man should be punished for that of which he is not guilty.' 'Where the proof does not implicate the principal, and, however, wicked the servant may have been, the principal neither expressly nor impliedly authorizes or ratifies the act, and the criminality of it is as much against him as against any other member of society, we think it is quite enough that he shall be liable in compensatory damages, for the injury sustained in consequence of the wrongful act of a person acting as his servant. Hagan v. Providence W. R. Co.,
This case was followed by the Supreme Court of the territory of Oklahoma in A., T. S. F. R. R. Co. v. Chamberlain,
3. But it is insisted that the trial court erred in refusing to submit to the jury the question as to damages on account of the brakeman's alleged kicking the plaintiff from the rear end of the car after the train had started to move, and after the doors were closed, and excluding the same from the consideration of the jury. This act was denied by the brakeman; but, if upon the theory of the plaintiff he was entitled to recover, such issue should have been submitted to the jury under proper instructions. Section 1394, Comp. Laws 1909 (section 1050, St. Okla. T. 1893), provides:
"If any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage out of the cars in the following manner: A passenger who refuses to pay his fare, or to conform to any lawful regulation of the carrier, may be ejected from the vehicle by the carrier. But this must be done with as little violence as possible, and at any usual stopping place, or near some dwelling house. After having ejected a passenger, a carrier has no right to require the payment of any part of his fare."
After a passenger has been ejected for refusal to pay his fare, the conductor seems to have a right to refuse to accept such party *691
seeking to again board the car, and, after such refusal, to use a reasonable degree of force to prevent such person from boarding and entering the car, and for that purpose to lay hands upon him and interfere with his person, using no more force than was reasonably necessary, having no right to use any excessive or unreasonably force, or to wantonly attack any such intending passenger. Sullivan v. Boston Elevated Ry. Co.,
In Pickens v. Richmond, etc., R. Co. et al.,
"When a person is put off a train for refusal to pay fare, at a regular station, or so near it that he can reach it while the train is stopping there, and buys a ticket from such depot to some point in the direction in which he is traveling, the weight of authority is in favor of the rule that he can be required, even then, to pay charges for the distance that he previously rode on the train without a ticket, and be ejected for refusal to do so."
But this question not being essential for determination in order to dispose of this case, we do not pass thereon.
The contention here raised is that the plaintiff was entitled to ride on said train, having bought and paid for a ticket and delivered same to the conductor, and, being wrongfully ejected from the car, immediately thereafter sought to re-enter the moving car, and whilst he was upon or hanging to the steps and in a dangerous position the brakeman wantonly and wilfully kicked plaintiff so as to cause him to lose his hold and fall, being thereby injured.
In Johnson v. Chicago, St. Paul, M. O. Ry. Co., 116 Iowa, 639, 88 N.W. 811, the court said:
"The brakeman, in the line of his duty, could lawfully expel the plaintiff as a trespasser upon the train; but if he discharged that duty with excessive force or violence, or at such time or in such manner as to unreasonably imperil the life and limb of the *692
trespasser, then he was negligent as charged, and his employer is liable. Of the authorities cited by the appellee, one only can fairly be said to give color to the doctrine advanced by counsel. It appears that this action was originally pending in the federal court, and there, after a ruling that plaintiff had failed to make a case, he was allowed to dismiss. See (C. C.) 94 Fed. 473. In the opinion there rendered, Shiras, J., recognizes the principle to which we have already referred, saying: 'A trespasser is not necessarily placed without the pale of the law, and he may recover for injury wilfully or recklessly inflicted upon him. Thus it is well established that a railway company cannot be justified in evicting a person from its train when the same is in such rapid motion as to necessarily cause risk to the life or limb of the person evicted, even though he is a trespasser. The high regard which the law places upon the life and limb of a citizen compels the company to exercise its right to evict a trespasser in such manner as not to incur the charge of wilful or reckless disregard of the safety of the person evicted.' Applying the rule thus clearly stated to the facts of the case, the federal court held that plaintiff did not come within its terms, because 'he voluntarily engaged in a running contest with the brakeman, in which plaintiff was unlawfully endeavoring to force himself upon defendant's train, and defendant was lawfully endeavoring to prevent the trespass.' From this language we must conclude that the testimony before that court was less favorable to plaintiff than is shown in the record before this court. As it is here presented, it cannot be fairly said that the brakeman was simply 'endeavoring to prevent a trespass.' The trespass was accomplished. The plaintiff was already on the car before he was assaulted by the brakeman. The brakeman's act was not an act of prevention or defense against an intending trespasser, but was an act of eviction, and this comes squarely within the principle affirmed by Judge Shiras. Reference is also made to Bolin v. Railroad Co., [
"* * * Appellee further urges that, plaintiff being a trespasser upon the train, he was therefore guilty of contributory negligence, and without remedy. The proposition is unsound. Being a trespasser, the company owed him no duty to provide him safe transportation, or to protect him against want of ordinary care on part of its employees; but it was still under the obligation, which we have already mentioned, not to evict him with unnecessary violence, nor to deliberately expose him to unreasonable hazard of injury. If the plea of contributory negligence were to be held good in such case, it would be equally effective if the brakeman, instead of kicking the plaintiff from the ladder, had made use of a loaded revolver.
"* * * Neither can it be said that, because plaintiff's act in boarding a moving train was in violation of the statute, such wrong upon his part affords a defense to the claim in suit. The fact that plaintiff's trespass was also a misdemeanor did not change the relations of the parties, nor absolve the defendant's train-men from their obligation to observe the rules of law we have hereinbefore cited."
In Galveston, H. S. A. Ry. Co. v. Zantzinger et al.,
" 'The questions certified are as follows: First. Should the act of the engineer in throwing out the steam and water for the purpose of ejecting Campbell from the engine be deemed wilful, in its relation to the result which actually followed, but was not *694
intended, so that the negligence of Campbell in placing himself in such a position, without which he would not have received his injury, cannot be considered contributory negligence, or should such act of the engineer be regarded as only a negligent cause of such injuries, with which the negligence of Campbell may be considered as contributing to the result? Second. Should the court, in applying the facts of this case as above stated to the rule announced in Railway Co. v. Neff,
See, also, Galveston, H. S. A. Ry. Co., v. Zanzinger et al. (Tex. Civ. App.)
Without passing upon the question as to plaintiff's being entitled to re-enter the car, we hold that he was entitled to have submitted under proper instructions the issue as to whether, whilst in a dangerous position, defendant's brakeman wilfully and unnecessarily and wantonly kicked him and caused him to fall from a moving train, thereby sustaining injury.
The judgment of the lower court is reversed, with instructions to grant a new trial.
DUNN, C. J., and KANE and TURNER, JJ., concur; HAYES, J., absent and not participating.