| Cal. | Jul 1, 1868
The facts of this case are that the female plaintiff, (who is a woman of color,) being desirous to take passage on one of the street cars of defendant, hailed the Conductor and requested him to take her on board; that he disregarded her signal and failed to stop, and by reason of his declining to stop she was unable to get upon the car. It was also proved, under objections from the defendant, that the Conductor on being urged by a lady passenger already in the car to stop the car for the plaintiff, replied: “We don’t take colored people in the cars;” and it was further proved that there was ample room for the plaintiff, and that she was provided with the usual passage tickets, and was ready and willing to pay the fare. There was no proof of any special damage; and the jury having retired, without any charge from the Court, returned a verdict for the plaintiff for five hundred dollars.
The defendant asked the Court to charge the jury in substance:
First—That unless the plaintiff’ had suffered special damage the jury could only find nominal damages; second—that unless it appeared that the plaintiff had suffered damage, the defendant was entitled to a verdict; third—that if the defendant, by its Conductor, refused to receive the female plaintiff on its car, such refusal was merely a violation of duty on the part of the company, and does not entitle the plaintiff to exemplary damages; that they are entitled to nominal damages, or the actual damages they sustained; fourth—that the Conductor was not bound to stop his car at other than the usual places of crossing, nor unless he saw the person who desired to get on board; fifth—that the plaintiff was not entitled to exemplary damages unless it was alleged in the complaint and proved that the defendant acted with actual malice and ill will towards the plaintiff personally; that there is no such allegation, and that therefore the jury will exclude from their finding any considera
The motion for a new trial was denied, and the defendant appeals.
In Turner v. North Beach and Mission Bailroad Company, decided at the present term, we have passed upon the chief points involved in this appeal.
The damages were excessive. There was no proof of sj>ecial damage, nor of any malice, or ill will, or wanton or violent conduct on the part of the defendant, and it was not a case for exemplary damages. The use of the word “special” in the first instruction is not strictly accurate, and is therefore objectionable, but we think, the third instruction asked ought-to have been given. The second and fourth were properly refused. The second affirms that it was incumbent on the plaintiffs to prove some actual damage to entitle them to a verdict even for nominal damages. But if the plaintiff was wrongfully excluded from the car, this violation of her rights entitles her to nominal damages. The law, in the absence of proof of actual damage, will presume it, where the rights of the plaintiff have been violated. The fourth instruction was properly refused on the ground assigned by the District Court. It is unnecessary in this case for us to decide the point raised in the fifth instruction, to wit: whether or not it is necessary to aver in the complaint malice and ill will
Judgment reversed and cause remanded for new trial.