93 P. 957 | Idaho | 1908
This is an appeal from the judgment and order denying a motion for a new trial. The appellant recovered judgment in the lower court against the defendant for the sum of $1,000 damages on account of the agents and employees of the defendant company wrongfully and unlawfully ejecting him from one of its railway trains. The respondent, Jacob E. Tarr, was, on the 23d day of December, 1905, residing with his family at Shelley, Idaho, and on the evening of that day purchased from the ticket agent at that place three tickets to Pocatello. It seems that the railway company had no night agent at Shelley, and that it was the practice of the company to take on baggage without the same being checked, on the passenger’s pointing out his baggage to the conductor or brakeman or other employee of the com
The respondent contends that under the provisions of sec. .2674, he was entitled to demand and receive a cheek for his ■ baggage before surrendering his transportation, and that he was entitled to remain on appellant’s train until such time as he received a check for his baggage, or until he reached his destination. Appellant, on the other hand, contends that .while the company would have been liable for the penalty prescribed in sec. 2674 for failing and neglecting to furnish the baggage cheek, notwithstanding that, respondent was not •entitled to ride on the train without paying his fare or surrendering up his ticket. Sec. 2674 provides as follows:
“A check must be affixed to every package or parcel of baggage when taken for transportation by any agent or employee of a railroad corporation, and a duplicate thereof given to the passenger or person delivering the same in his behalf; And if such check is refused on demand, the railroad corporation must pay to such passenger the sum of twenty dollars to be recovered in an action for damages; and no fare or toll must be collected or received from such passenger, and if such passenger has paid his fare, the same must be returned by the conductor in charge of the train; and on producing the check, if his baggage is not delivered to him by the agent or employee of the railroad corporation, he may recover the value thereof from the corporation.”
It will be seen from the foregoing provision of the statute that it is made the duty of the railway corporation to affix a cheek to every parcel of baggage and deliver a duplicate thereof to the owner. In this case, the company, having no
Counsel for appellant have argued that the company in the-discharge of its duty has a right to establish certain rules and regulations to facilitate business, and that, among other things, it was the duty of the passenger to pay his fare or surrender his ticket before demanding his baggage checked. The law does not say which act shall be performed first, but they are clearly concurrent duties, one resting upon the passenger and the other upon the transportation company. The passenger had an undoubted right to demand his baggage check. The company’s agent in this case did not give him any assurance that they would ever furnish him a check for his baggage. The only assurance he ever had was that the conductor said to him: “You give me your tickets and if your baggage is lost, I think we can locate it for you later.” This was far from an assurance that the conductor would discharge his duty under the statute and secure the passenger a check for his baggage before reaching his destination. We think the doctrine is correct as stated by Hutchinson on Carriers, vol. 2, sec. 1036 (3d ed.), cited by appellant, to the effect that passengers are required to show their tickets to the conductor at reasonable times and be subject to the reasonable requirements of the company. In this ease, the company had already received the passenger’s baggage on its train, and had complete charge and control thereof, and the conductor had received from the passenger one ticket and.knew that he had two other tickets in his possession on the same train. A somewhat different rule would apply, we apprehend, where a prospective passenger takes his baggage to the depot and demands that it be cheeked. In such case, he would have to
Counsel for appellant insist that the statute, sec. 2674, supra, should not receive the construction we are placing on it, for the reason that such a construction would be in violation of the fourteenth amendment to the constitution of the. United States, in that it would deprive the railroad company of property without due process of law. Counsel admit that the company would be liable for the $20 penalty under the statute on a failure to furnish the passenger with a baggage check, but say it would be taking its property without due process of law to allow a passenger to ride without paying his fare. Such an argument is unsound, for the reason that free transportation under the condition named in the statute is no more a taking of property without due process of law than the collection of the $20 penalty. Indeed, we think one is as much a part of the penalty as the other. In the matter of transportation, the statute says the company shall not collect fare unless the cheek is furnished. As to the payment of the $20 penalty, the company might do that without action, or if it fails to do so, it is liable to an action for the recovery of the same. In this case, however, the company refused to carry the passenger ¿s required to do by see. 2674, and proceeded to eject him from the train. In doing so it committed a tort for which it is liable in this action.
This, it should be observed, is not an action for breach of the contract, but an action in tort to recover for the wrongs committed. The passenger is not endeavoring to collect the $20 penalty prescribed by the statute, but insists that he was rightfully on the appellant’s train, and that he had a right to remain there until he reached his destination, and that under such circumstances the employee of the railroad company committed a tort for which this action has been prosecuted. This case is not parallel with, or subject to, the same rule that governs eases where a passenger goes upon a railway train and refuses to pay fare or surrender his ticket until he is furnished a seat. In those cases it is held that if he remains on the train, he must pay his fare, but that,
On tbe trial of this ease, defendant’s counsel objected to tbe introduction of evidence showing that tbe passenger when being ejected from tbe train offered to pay his fare if tbe employees of tbe company would permit him to continue on bis journey. If it be conceded that it is a correct principle of law that a passenger after refusing to surrender his ticket or pay fare, and tbe employees of tbe company have commenced to eject him, cannot then offer to pay fare and reinstate himself in tbe right to continue on tbe train, then, of course, such evidence as was offered in this case would be immaterial and was improperly admitted. When it came to giving tbe instructions, however, to tbe jury, tbe court adopted tbe appellant’s theory of tbe law and gave an instruction on its requést to tbe effect that a “passenger who refuses to pay bis fare or furnish and deliver up a ticket good for such transportation, and on account of such refusal tbe train is stopped for tbe purpose of ejecting him, be cannot then, by a tender of bis fare or an offer to deliver up bis ticket, reimpose upon tbe carrier tbe duty of carrying him.” In tbe case at bar, this question became entirely immaterial, and evidently did not enter into tbe consideration of tbe jury in making up their verdict, for tbe reason that tbe passenger was rightfully on tbe train, and tbe company bad no right to eject him in tbe first instance.
Tbe next and most serious question that arises on this appeal is directed against tbe instructions given by tbe court to tbe jury. Tbe objectionable instruction is plaintiff’s request No. 3, which is as follows: “Tbe jury is instructed that every particular phase of tbe injury may enter into tbe con- ' sideration of tbe jury in estimating compensation, loss of time with reference to tbe injured party’s condition and ability
Defendant’s requested instruction No. 11 was given by the court, and that instruction also advised the jury that if they found in favor of the plaintiff, the only damage they could assess was such as was within the evidence and justified thereby, and that they must secure their data from the evidence itself upon which they calculated and assessed the damages.
It must be conceded in the outset that the plaintiff’s re-quested instruction No. 3 as given by the court, while en
It is well settled that as to mental and physical pain and suffering and humiliation, it is unnecessary to submit any evidence as to the value thereof and the amount of damages to compensate therefor, but that the same is a question entirely and exclusively for the jury. (North Chicago St. Ry. Co. v. Fitzgibbons, 180 Ill. 466, 54 N. E. 483; Springfield Consol. Ry. Co. v. Hoeffner, 175 Ill: 642, 51 N. E. 885; Sutherland on Damages, 3d ed., sec. 1243; Hughes ’ Instructions to Juries, secs. 652, 653.) On the other hand, it is equally well settled that where the party claims special damages for loss of time, he must prove both the amount of time lost and the value thereof, and that the jury must be governed by the evidence in relation thereto. (Western Union Tel. Co. v. Morris, 83 Fed. 992, 28 C. C. A. 56; Pratt v. City of Ottumwa (Iowa), 113 N. W. 831; Barron v. Northern Pac. Ry. Co. (N. D.), 113 N. W. 102; Gardner v. B. C. R. & N. R. Co., 68 Iowa, 588, 27 N. W. 768; Southern Ry. Co. v. Hawkins, 28 Ky. Law Rep. 364, 89 S. W. 258.)
It will be seen, however, on an examination of the authorities, that where a case has been reversed on account of such an instruction, it has been where there was either evidence of loss of time and no evidence of its value, or where the court had told the jury that they might assess the damages for loss of time without any evidence as to its value or without xeference to such evidence if any had been given. The latter' condition is peculiarly noticeable and prominent in Pratt v. City of Ottumwa, supra. In the case at bar, there is no evidence of any particular or specific loss of time, and the most that could be said in that regard would be that it contained .a mere inference of the loss of some period of time less than two weeks while respondent was receiving medical treatment, and no evidence whatever as to the value of any time lost. ‘The record is convincing from the complaint to the last word
Lastly, instruction No. 3 is a correct general principle oO law, and although there was no allegation in the complaint, and-no evidence in the case claiming damage for the one element, namely, loss of time, mentioned in this instruction, wo think it would be far-fetched and illogical for an appellate court to hold that under such facts and circumstances the
Again, we have repeatedly held that all the instructions given in a case must be read and considered together as a whole, and that where they are not inconsistent but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole instruction rather than to an isolated portion thereof. (Lufkins v. Collins, 2 Ida. 256, 10 Pac. 300; State v. Cochran, 7 Ida. 220, 61 Pac. 1034; Hansen v. Haley, 11 Ida. 293, 81 Pac. 935; State v. Bond, 12 Ida. 424, 86 Pac. 43; State v. Niel, 13 Ida. 539, 90 Pac. 960, 91 Pac. 318.)
The other instructions given by the court we think correctly stated the law, and the assignments of error in reference thereto are without merit. All of the defendant’s requested instructions that correctly stated the law were given, either literally or in substance by the court. Those rejected were clearly erroneous and properly refused by the court. We think the judgment in this ease is a just one, and that no sufficient grounds have been shown why it should be reversed. Judgment is affirmed with costs in favor of respondent.