67 F. 662 | 7th Cir. | 1895
Lead Opinion
This action was for the wrongful removal of the appellee from a passenger train of the appellant. The case is here the second time, and for a fuller statement of it reference is made to the opinion reported in 6 C. C. A. 597, 57 Fed. 822, 18 U. S. App. 279. The first recovery, which was for $1,000, was reversed because the jury was instructed that punitive damages might be allowed if the injury was wanton. The judgment against which relief is now sought is for $2,500, and the errors assigned again relate to instructions given and refused, but it is stated in the brief of appellant that the only error relied upon is the refusal of the court to give the instructions asked. There are two of them. The first is to the effect that railroad companies have the right to issue nontransferable mileage tickets with reasonable conditions attached, like those attached to the ticket sold by the appellant to the appellee, and in regard thereto to issue reasonable instructions to conductors, like those shown to have been issued hy the appellant to its conductors. All evidence in respect to the ticket and its conditions, and in respect to the rules and regulations of the company on the subject, was introduced on behalf of the appellant, and the argument in support of the proposed instruction is that:
“If the conditions attacked to the ticket, and the instructions of the company under which the conductor was acting, were reasonable, and such as the company might lawfully make and enforce, and the conductor was acting thereunder in good faith, with no purpose to oppress or wrong the passenger, the defendant in error was not entitled to damages for any increased humiliation and shame and consequent mental suffering resulting from the determined action of the conductor in obedience to said conditions and instructions.”
The proposition is too remote and intangible to be availing. There is nothing in the conditions of the ticket, or in the regulations of the company in respect to tickets of that class, which a fair-minded juror, though unaided by an instruction, could have regarded as unreasonable, or as affecting the amount of damages, which were to be awarded, as the charge of the court required, on the basis of compensation for the injury actually suffered by the appellee, including the humiliation and consequent mental suffering caused by the action of the conductor. The extent of that injury—punitive
By the second request the court was asked to charge that if the plaintiff resisted the conductor’s efforts to eject him, so as to require the use of force, and such resistance aggravated or increased the nervous trouble under which the plaintiff claimed to have been suffering, the resistance and resultant increase of suffering should be considered in mitigation of damages. Our views upon the question of the right of a passenger upon a railroad train to resist wrongful expulsion are indicated by our former opinion in this case. The rule declared by the supreme court in Railroad Co. v. Winter’s Adm’r, 143 U. S. 60, 73, 12 Sup. Ct. 356, is that one rightfully on a train as a passenger has the right to refuse to be ejected, and to make a sufficient resistance to denote that he is being removed against his will. There was, therefore, no error in refusing the instruction in question. If it had been limited to injury caused by a voluntary or intended excess of resistance over what was necessary to show the unwillingness of the appellee to be expelled from the train, it ought perhaps to have been given; but, to the extent of rightful resistance, if increased injury resulted, the right to increased compensation necessarily followed.
Concurrence Opinion
(concurring). If the passenger be ordered to leave the train, his getting off is prima facie caused by the order. He need not resist “to denote” that his leaving is “against his will.” If, however, the company have no right to eject him, he may repel the assault with all needful force, and the company will be liable for the trespass and all the consequences thereof, whether he succeed in remaining on the train or be put off. On the other hand, if the passenger be, like a ticket holder in a theater, a licensee, then he must leave the train when ordered. By refusing, he becomes himself a trespasser, and.may be put off. On either theory, the company would be liable for refusal to carry him, and this liability might involve consequences of aggravation. On the former theory, an action would also lie for the assault, but, of course, not on the latter. The dictum in Railroad Co. v. Winter’s Adm’r, 143 U. S. 73, 12 Sup. Ct. 356, that one “rightfully on the train as a passenger” has “the right to refuse to be ejected from it, and to make a sufficient resistance to being put off to denote that he is being removed by compulsion and against his will,” implies that the public interest against a breach of the peace 'may be a limitation upon the rights of the injured party in trespass against the wrongdoer. Substantially this idea was the ground of decision in the overruled case of Newton v. Harland, 39 E. C. L. 952, in England, and in,,the cases,, also overruled, of Dustin v. Cowdry, 23 Vt. 635, and Reeder v. Purdy, 41 Ill. 279, in America. The passenger cannot have the right to remain on the train while the carrier has the right to eject him. The latter cannot be saved from the consequences of the former’s resistance to an unlawful attempt to eject him. A
