Sprenger v. Tacoma Traction Co., No. 2334

No. 2334 | Wash. | Nov 30, 1896

The opinion of the court was delivered by

Hoyt, C. J.

Defendant was operating a street car line in the city of Tacoma, and plaintiff was a passenger on one of its cars. He was ejected therefrom by the conductor for the alleged non-payment of his fare, and brought this action to recover damages, claiming that he had paid his fare and that he was unlawfully ejected. The trial resulted in a verdict for $100 damages, upon which judgment was duly rendered.

In its brief defendant has discussed the alleged errors of the trial court under numerous heads, but for the purposes of this opinion they can be so grouped as to present but four distinct propositions. Of these, two’relate to the rejection of testimony offered on the part of the defendant; the third, to instructions given to the jury and refusals to instruct, and the fourth, to the measure of damages.

Plaintiff having testified that he had paid his fare and that thereafter he had been compelled to leave the car by the action of the conductor and motorman, was asked by defendant’s counsel if he had not been put off of the street cars before for refusal to pay fare. This question he answered in the negative! Whereupon he was asked if he had not been put off the Northern Pacific railroad cars for non-payment of fare. Upon objection of the plaintiff, the court refused to allow him to answer, and it is claimed that in so doing it committed error. A large number of cases have been cited to show that it is competent to prove that one has been guilty of a certain offense by proof of the commission of other offenses of the same nature. But in our opinion none of these cases are applicable to the question here presented. The fact that plaintiff had had trouble about the payment of his fare upon a railroad train would bear so remotely upon the question as to his attempting to beat the street car out of a five cent fare, that it was properly-excluded from the consideration of the jury. The ruling of the court, which allowed the defendant to attempt to show that the plaintiff had had trouble about the payment of fare upon, street cars, was as favorable to the defendant as it could ask.

The conductor, having testified that he collected fare on the side of the car upon which the plaintiff was sitting up to and including that of a woman sitting next to him before he left that side to collect fares upon the other, and that when he returned to the side from which he first collected fares he sought to collect the fare of the plaintiff, was asked by defendant’s counsel a question' which sought to elicit from the witness a statement as to the reasons why he was sure he had left off collecting, upon the side of the car upon which the plaintiff sat, with the woman who sat next to him. The objection of plaintiff to this question was sustained, and it is claimed that in sustaining it the court committed error. In determining as to the correctness of this ruling it must be remembered that the question was put by defendant to its own witness, that he had testified positively to the' fact that plaintiff had not paid his fare, and that he had left off collecting upon that side with the woman sitting next to plaintiff. This being so it was not competent for defendant to holster up the testimony of its own witness by asking for the reasons which had led him to come to the conclusions to which he had testified. It might have been competent for the plaintiff in cross-examination to have gone into this question, but until this was done the testimony, when offered upon the part of the defendant, was properly excluded.

It will not be necessary to notice in detail the exceptions to the instructions, for the reason that such exceptions are founded largely upon questions going to the measure of damages, which will be hereinafter considered. It will be sufficient to say that, in view of the measure of damages as to which under the evidence we think the jury should have been instructed,, the instructions sufficiently and correctly stated the law of the case.

It appeared from the uncontradicted testimony that the plaintiff had several other tickets one of which he could have used in payment of his fare, and thus have prevented his ejection for not paying; and it is earnestly contended on the part of the defendant that, under the well settled rule that it is the duty .of one who has been deprived of a contract right to reduce the damages flowing from the violation of the contract as much as possible, it was the duty of the plaintiff to have used one of the tickets in his possession, by doing which he would have reduced the damages growing out of the wrongful act of the conductor to the sum represented by the value of the ticket. The general rule contended for by the defendant is unquestioned, and it may be conceded that thereunder the defendant would only have been liable in such an amount of damages as was necessarily imposed upon the.plaintiff by its wrongful action, if such wrongful action had not been committed by it under circumstances which showed a disregard for the rights of the plaintiff. If no evidence had been introduced tending to show that there had been a want of care and investigation on the part of the conductor before he acted upon the claim that plaintiff had not paid his fare, .there, might be reason for the application of the rule contended . for, though many of the cases hold that such a rule is not applicable to a contract of carriage by a common carrier with a passenger. But there was evidence sufficient to go to the jury to show that there had been such a disregard of the rights of the plaintiff as to deprive the defendant of the benefit of this rule, even if it applied to cases of this kind. The undisputed proof showed that, with the delay of a few minutes, the conductor could have made an investigation which would have definitely determined whether or not the plaintiff had paid his fare. And in view of the plaintiff's claim that he had paid it, which claim was supported by the statements of at least two of his fellow passengers, good faith required that such investigation should have been made before making the definite charge that plaintiff was attempting to beat his way over the road and enforcing such charge by his expulsion from the car. In view of the action of the conductor, the plaintiff was placed in. such a position that it was not his duty to use another ticket and thus tacitly admit that he had been guilty of trying to beat the company as claimed by the conductor. This being so, the instructions as to the measure of damages were what they should have been, and the evidence was such that the verdict for $100 was not excessive.

The judgment will be affirmed.

Dunbar, Scott, Anders and Gordon, JJ., concur.