103 Tenn. 124 | Tenn. | 1899
Hugh O’Rourke brought this action against the Citizens’ Street Railway Company
Having appealed in error, O’Rourke seeks a reversal, remand, and new trial for several reasons assigned.
Shortly after 2 o’clock in the afternoon of March 7, 1897, the plaintiff, with his wife and three small children, embarked upon a Beale and Lane avenue car of the defendant in the city of Memphis, and, after paying proper fares, requested and received from the conductor in charge the requisite number of tickets of transfer to a northbound Main street car of the same company. At the proper place for the contemplated transfer the plaintiff, his wife and children, disembaiked from the first car mentioned, and promptly took passage upon the other one. The conductor of the latter car, after examining the transfer tickets tendered by the plaintiff, said to him: “You were a long 'time waiting for this car.” Plaintiff replied: “We ain’t waited two minutes. We just got off that Beale and Lane . avenue car, going south.” Continuing the dialogue, the conductor said: “Well, you will have to get off or pay your fare;” and the plaintiff remarked: “I won’t do either; I won’t get off or pay my fare. I have paid, my fare once, and that is, I think, sufficient to ride on.”
The witnesses were not harmonious in their several versions of the conductor’s manner and actions in effecting the expulsion. The plaintiff testified that the conductor was harsh and severe, and that he “jerked” the plaintiff’s arm so roughly as to make it “sore for several days.” The conductor testified that he was respectful and used no more force than was necessary. In the course of his testimony the plaintiff said there w^s some confusion on the ear, that his little girl and his little boy were both crying, and that he “thought the little girl would go into spasms.” The trial Court excluded the statement about the manifestations of the children, saying that the fact of “their excitement cannot be taken.”
In this ruling His Honor was in error. The excluded testimony was competent, and should have been considered. It related to a fact which formed a part of the res gestae, and which', in the minds ' of the jury, might have shed some light on the important issue as to the real demeanor of the conductor towards the plaintiff. The spontaneous manifestations of the children were just so much of the transaction itself, and cannot be separated from it. Proof of them is essential to a ' true and complete history of the th.ing done.
The plaintiff’s contention is that the cries of his children at the very moment tend to corroborate his theory of violent expulsion. Undoubtedly the children were excited and alarmed by what they saw and heard; but whether gentle expulsion of their father would have produced that result, with children so young, as readily as violent expulsion, this Court does not decide. That * is a matter for the consideration of the jury.
The expulsion, whether violent or otherwise, resulted primarily from a mistake of the first conductor in punching the transfer tickets so as to indicate their issuance at ' 1:40 p.m., when, as a matter of fact, they were issued nearly an hour later. The second conductor, judging the tickets by the punch marks, assumed, over the statement of the plaintiff to the contrary, that • he had violated the rule of the company requiring all transfer passengers to take the first connecting car, and upon that assumption treated the tickets as expired, and, under another rule of the com-
In his charge to the jtiry the trial Judge said: “A person may lose his right to continue his journey as a passenger upon a car under the following circumstances:
“1. When he acts in snch a way as to endanger the peace and comfort of the other passengers, he has no right to continue his journey upon the car.
“2. When he presents to the conductor, as an evidence of his right to ride, a ticket or transfer check which shows upon its face that he has no such right, then he cannot continue his journey upon such ticket.
‘‘3. WTien the conductor, who declined to', accept "the ticket or transfer, gave such explanation of the defect in the ticket or transfer as would have satisfied auv ordinarily reasonable person that the conductor was justified in refusing to take it, then he cannot continue his, ride.”
Though entirely sound in law, the first of these three propositions is wholly inapplicable in the present case, there being no evidence tending, in the slightest degree, to show that the plaintiff was guilty of conduct- calculated to “endanger the peace and comfort of other passengers.*’ legal abstractions in a charge arc not always hurtful, and, unless it appears that they may have been so, the giving of them, while never to be ap
The second proposition is one about which the authorities are in irreconcilable conflict. Many of them, like the charge of the learned trial Judge, treat the face of the ticket as the sole criterion of the holder’s right of passage, justify his ejection in ■ case of defective ticket and refusal to pay fare, . and • allow him, as bis only remedy therefor, an action of damages for the negligent mistake of the agent, or for breach of contract, and not for expulsion (notably Pouilin v. Canadian Pac. R. Co., 52 Fed. Rep., 197; Frederick v. Marquette, etc., R. R. Co., 37 Mich., 342; Hufford v. Grand Rapids & Ind. Ry. Co., 53 Mich., 118 (S. C., 8 Am. Neg. Cases, 430); McKay v. Ohio River R. R. Co., 34 W. Va., 65 (S. C., 8 Am.. Neg. Cases, 662); Yorton v. Milwaukee, L. S. & W. Ry. Co., 54 Wis., 234 (S. C., 8 Am. Neg. Cases, 678); Western Md. R. R. Co. v. Stockdale, 4 A. & E. R. R. Cases, N. S., 515; Bradshaw v. R. R., 135 Mass., 407; 4 Elliott on Railroads, Sec. 1594), while others, on
We concur in the latter view, and hold that a person who makes a' valid contract is entitled to passage according to its terms, though the face of the ticket furnished him may not in any .true sense express the contract. It is the contract and not the ticket that gives the right to transporta
The passenger is not required in law, nor allowed in fact, to print or write or stamp the ticket. The carrier alone has that right, and the passenger is authorized to believe and presume that it will be properly exercised, and that the ticket, when delivered, is a faithful expression of the contract as made.
The ticket, whether for transfer, as in the present case, or for original passage, may well be called the carrier’s written direction by one agent to another agent concerning the particular transportation in hand; and if the direction be contrary to the contract, and expulsion follow as a consequence, the carrier must be answerable for all proximate damages ensuing therefrom, just as any other principal is liable for the injurious result of misdirection to his agent.
In our opinion the legal result, in such a case, cannot be influenced by the fact that the carrier has conducted the transaction through two agents instead of one, for the combined acts of the two agents constitute but one continuous act of the carrier. Each agent is the alter ego of the carrier. The issuance of the void ticket is the faulj; of the first agent, the expulsion is the fault of
Beyond question, carriers have the legal right to require passengers to procure and present. tickets, but • that does. not imply that passengers who have done their part in the matter, may be rightfully expelled' from the car because the tickets they offer chance to be defective, or void. Before the rule of expulsion for want of proper tickets can be made absolute and universal in its application, the carriers must discharge the reciprocal duty of absolute and universal accuracy in the issuance of the tickets. The latter would be impossible, the former harsh and unreasonable. To require a passenger, who has- made a valid contract for trasportaron and paid the requisite fare, as did the plaintiff; to retire from the' car and suspend his journey because of an original defect in the ticket furnished him by the company’s agent, is to visit the -wrong of the offender upon the offended; it is to make the rightful passenger suffer for the fault of the carrier, and that, too, in the latter’s interest. This Court will not yield its assent to a- result so unjust and oppressive.
The* plaintiff had a right- to believe the transfer ticket all that it should be. With it he diligently
It may be true, as suggested in some of the authorities (Frederick v. Marguette, etc., R. Co., 37 Mich., 342; Poulin v. Can. & Pac. R. Co., 52 Fed. Rep., 197; 4 Elliott on Railroads, Sec. 1594), that the carrier can dispatch its business more conveniently and expeditiously, and can avoid losses through fraud and imposition more readily, by treating the ticket as conclusive evidence of the passenger’s right to be carried, than by taking and adopting his ex parte statement of the real contract, when claimed to be different from the ticket; yet such ends, desirable as they may be and are, afford no legal sanction for the expulsion of a passenger who is without fault and whose • ticket fails alone through the mistake
It is no answer to the legal right of the bona fide passenger to say that the carrier’s general interest is better subserved by his expulsion than by his carriage, by the violation of his contract 'than hy its observance. His right is not to be affected by the mistakes of, ticket agents, or the attempted frauds of imposters; these are to be met, if met at all, otherwise than through a rule that excludes innocent as well as fraudulent passengers. It is not allowable to' punish the innocent with the guilty, to prevent the escape of • the guilty.
A ticket agent,- on selling ticket to proposed passenger, referred him to conductor for privilege of stop-over at intermediate station; conductor authorized stop-over, but instead of issuing stop-over check only punched passenger’s regular ticket, telling him that would be sufficient; second conductor, following rule of company, refused to recognize the punched ticket, and expelled passenger when he refused to pay fare; a judgment in favor of .the plaintiff: for $10,000 was affirmed upon the ground that the expulsion was unlawful, the' Court saying: “The reason of such rule' is to be found in the principle that where a party does all that
A street car conductor issued transfer ticket, punched at two time marks, 7:30 a.m. and 9 a.m., the conductor of car to which transfer ivas made refused to accept ticket, on ground that it was two hours old, and ejected passenger on his refusal to pay fare, although informed that the ticket was issued at nine o’clock, just before passenger got on car. Held, that the company was liable in damages for an unlawful ejection, the company, and not the passenger, being responsible for the defective- or doubtful character of the ticket. Laird v. Pittsburg Traction Company, 166 Pa. St., 4 (S. C., 8 Am. Neg. Cases, 617).
By mistake a ticket agent sold a ticket dated back three days: the passenger presented it on the day purchased, but was expelled by the conductor because the ticket was antedated and holder refused to pay train fare; company held liable for wrongful ejection, the Court saying the validity of the ticket depended upon the actual time of sale, arid not upon its date. Ellsworth v. C.
Tlie holder handed return coupon to proper agent to he stamped, at same time calling for sleeping' car ticket-: the agent returned coupon folded with sleeping car ticket, and holder put them in his pocket without examination. When presented on train it was discovered that agent had not in fact stamped coupon, and for that reason the conductor refused to accept it, and expelled holder upon his refusal to pay fare. Held, that the holder, having done his part, was a legal passenger, and that the railway company was liable in damages for his expulsion. Northern Pac. R. Co. v. Pauson, 70 Fed. R., 585.
An agent sold a canceled ticket and delivered it as a good one; the conductor refused it, and. the passenger paid the fare a second time to prevent ejection. He sued for damages, and the óáse was twice before the Supreme Court of Michigan. On the first appeal the Court said that “as between the conductor and the passenger, the ticket must be the conclusive evidence of the extent of the passenger’s right to travel” (Hufford v. Grand Rapids & Ind. Ry. Co., 53 Mich., 118), and. on the second appeal the Court, among other language, used - the following: “When the plaintiff told the conductor on the train that he had paid his fare, and stated the amount he had paid to the agent who gave him the ticket he
In concluding this part of this opinion, it should he remarked that our own cases of Railroad v. Fleming, 14 Lea, 146; Railroad v. Benson, 85 Tenu., 627, and Railroad v. Turner, 100 Tenn., 224, are not in * fact, and are not claimed to he, in point on the principle issue in the present case. The most that was decided in the first and second of them, in reference to a railway ticket, was that persons desiring to travel upon railway trains must procure and present tickets, when required hy a rule of the company; and the last one dealt with a different branch ot, the ticket question, that of. notice.
The meaning of the third proposition in that part of the charge heretofore quoted is somewhat obscure; yet, its effect seems to he that a passenger “cannot continue his ride” on a transfer ticket when the conductor points out such defect in it as justifies the conductor, under the rules of the company, “in refusing to take it.” The instruction thus interpreted is erroneous, in that it impliedly repeats the proposition that the ticket is the sole criterion of the holder’s right to passage, and also in that it attaches unwarranted
On the face of the transfer check were printed the following words:
“Transfer.- — Passenger in accepting ' this transfer 'agrees to read and be governed by the conditions on the back hereof, subject to the rules of the company.
“G-. F. Jones, V. P. & G-. M.”
The Court instructed the jury that this requirement and all of the conditions on the back were reasonable, and that ' plaintiff was bound to comply with them.
In this instruction the Court erred in at least two respects. Among the conditions printed on the back of the transfer check was one in this language: “Part of the conditions upon which this transfer is given and accepted are that the pas
This condition is unreasonable, because no passenger can be bound to verify the ■ act of the conductor in issuing a transfer check; and also because no inexperienced passenger, however intelligent, could, in the time at his command on so brief a trip, “examine date, time, and direction” indicated by the punch marks, and, without an explanation, see “that the same are correct.” There is no little complication about these three items on the face of a transfer check, and especially about the manner of indicating the “time” of issuance. The plaintiff made no examination on receiving his check from the first conductor, and could scarcely understand the meaning of the punch marks when explained by the conductor who expelled him. The complexity of the checks, and the unreasonableness of the rule requiring a passenger to verify its correctness when issued,* could hardly be' better illustrated than by. a statement from this record that the learned trial Judge himself, with one of the very checks here involved before • him, was not able to understand its meaning without a minute explanation.
At the trial the Court, for its own information on the subject, propounded certain interrogatories to one of the officers of the defendant about the meaning of one of these checks. Those
“The Court. I wanted to ask you how would anybody know what these figures over there on the right end stand for % ■ What is there to indicate the hours and minutes outside of just the figures themselves ?
“A. Well, I don’t know how I could explain that, Judge.
“The Court. What are those figures all over the right hand end of the ticket %
“A. The black figures are the hours and the little figures indicate 10, 20, 30, 40, and ' 50 minutes.
“The Court. I don’t catch it exactly.
“Witness. Well, here the figure is one o’clock, and if the A’ is punched it would be 1:40, and if the ‘2’ is punched it would be 1:20.
“The Court. Oh, yes, I didn’t catch it; I didn’t understand, the thing. It would be 1:20 if the 2 • is punched, and if the 3 is pxmched 1:30, *and if the 4 is punched 1:40, and if the 5 is punched 1:50 ?
“A. Yes, sir; same transfer that is used all over the country.”
It cannot be fair or just or reasonable to require passengers, in the hurry of rapid street car travel, to decipher at- their peril a check whose meaning so intelligent a Judge cannot ascertain by careful and deliberate inspection.
Another condition on the back of the check
This condition is unreasonable, in that it makes the conductor, for the time, the sole judge of the sufficiency of the ticket, and requires the passenger to pay additional fare though his ticket may he refused without sufficient cause; and further, in that it requires the wronged passenger, Avho so pays,' to apply for refund at the office of the company, AAdiich must be remote from the houses and businéss places of most passengers, and then limits the amount to he received by such person to that Avrongfully exacted. It puts all of the ■ burden of the “'controversy” upon the wronged passenger, and none upon the wrongdoing company, and thereby makes the just suffer for the unjust.
ReA'erse and remand.
