Teddars v. Southern Railway Co.

81 S.E. 474 | S.C. | 1914

Lead Opinion

April 21, 1914. The opinion of the Court was delivered by This was an action for damages for an alleged wrongful ejection of plaintiff, a passenger on defendant's train from Columbia to Greenville, at Chappells, S.C. on June 3, 1912. The cause was heard before Judge Shipp, and a jury, at the September term of Court for Greenwood county, 1913, and resulted in a verdict for the plaintiff for $500. After entry of judgment, defendant appeals.

The first exception complains of alleged error in the Judge's charge in reference to the duty of the carrier when a dispute arises between the carrier and the passenger as to the right of the passenger to transportation, and is as follows: "The presiding Judge erred in charging the jury that in every case of dispute between a passenger and a carrier as to his right of transportation it is the duty of the carrier to heed the reasonable explanation of the passenger and to investigate the same; that if the carrier fails to investigate, and it turns out that the passenger's explanation was true, the ejection would be wrongful; that the ejection is only lawful where, after investigation, the passenger's explanation is shown to have been false. Specifications: (a) The duty to investigate depends upon the character of the passenger's explanation, the facts and circumstances he details; they may be, and in the case at bar they were, of such a character as to render an investigation impracticable and even impossible without serious embarrassment to the movement of the train and subsequent inconvenience to the other passengers; (b) such rule applied to the facts of this and establishing a precedent in all similar cases. would seriously embarrass the revenues of the carrier by placing it in the power of all persons so disposed to defraud the carrier and secure transportation for which they have not paid; (c) such rule applied to the facts of the case at bar, takes no account of the obstructive, obstinate, and unreasonable conduct of the passenger. The plaintiff claimed to have in his pocket at the time of the dispute a receipt from the defendant's agent in Columbia for his fare from Columbia to Greenville, which he would not produce; common honesty and fairness required him to do so and not throw upon the carrier the duty of conducting upon independent lines for itself an investigation which, under the circumstances, was impracticable and even impossible without serious embarrassment to the movement of the train and consequent inconvenience to the other passengers; (d) such rule makes the right to eject a passenger depend upon the carrier's ascertainment that the passenger's explanation was false; whereas, the carrier has a right to eject a passenger who does not present evidence of his right to ride and refuses to pay fare, when he obstinately fails or refuses to present such evidence in his possession, or where he offers an explanation which in the nature of the case cannot be investigated without serious embarrassment to the movement of the train and consequent inconvenience to the other passengers."

This exception will have to be overruled, as we think his Honor followed the law as laid down in Smith v. RailwayCo., 88 S.C. 421, 70 S.E. 1057, which doctrine, as laid down by the Court in that case was reaffirmed in the case ofCampbell v. Southern Railway, 94 S.C. 95, 77 S.E. 95, and the doctrine fully established that "the rule requiring the conductor to heed the reasonable explanation of the passenger, instead of allowing him to demand the payment of the fare on pain of expulsion from the train, works less hardship, inconvenience, and expense on the carrier than the opposite rule would on the passenger, for it is generally an easy matter for the conductor to ascertain whether the explanation of the passenger is true or false, because the stations along the railroad are nearly all connected by telephone, or telegraph lines, which the agents of the company use, with little trouble, and at little or no expense. It is a serious matter to expel a passenger from a train. It subjects him to humiliation and is calculated to wound the feelings of any self-respecting passenger. Therefore the law allows punitive damages for the wrongful expulsion of a passenger and also for compelling him to pay money under threat of wrongful expulsion. Myers v. Railway, 64 S.C. 514,42 S.E. 598; Tollerson v. Railway, 88 S.C. 7,70 S.E. 311. Consequently the law is, that the carrier must be allowed to resort to so harsh and extreme a measure only at the peril of being able to justify it." In the case at bar there is no question but that the party who sold ticket to plaintiff at Columbia was the agent of the defendant, and if plaintiff called for a ticket to Greenville, and paid for it, and by reason of the negligence of defendant's agent failed to furnish him a ticket to Greenville, but gives him one to Newberry, this would not allow another agent of the company, a conductor, or ticket collector, to wrongfully expel him from the train. If he bought a ticket to Greenville and by negligence or mistake was only furnished one to Newberry, after leaving Newberry, when called upon for further fare, it was the duty of the ticket collector to heed the reasonable explanation of the passenger. The ticket collector is not required to accept as true any plausible explanation of the passenger, but to heed the reasonable explanation and arrive at the truth as best he can by the means at his disposal, whether by use of telephone or telegraph, or statements of other witnesses, or any facts or circumstances that corroborate the explanation of the passenger, and there is a reciprocal duty on the part of the passenger to furnish to the conductor, or ticket collector, any information within his possession to substantiate his explanations and elucidate the same, or any fact or circumstance that he knows of that will throw any light on the transaction. It is the duty of both conductor or ticket collector, and passenger to discuss their differences in a calm, courteous, and polite manner, and to mutually aid each other in arriving at a conclusion by furnishing each to the other any information as to the purchase of ticket that either may know of in reference to the same. It would be well for the purchaser of a ticket, if he has the time, to examine it to see that he is getting what he called for, and if he fails to do this, in making his explanation to ticket collector, explain why. We see no error on the part of his Honor as complained of in this exception, and the exception is overruled.

The second, third and fourth exceptions complain of error on the part of his Honor in reference to the preponderance of the evidence, and challenge the correctness of the same.

We have examined his Honor's charge as a whole, and find no prejudicial errors therein such as would warrant a reversal on errors in his charge. In his general charge he stated in his own language that the plaintiff was required to make out his case by the greater weight of the testimony, or if there was an even balance of testimony in jury's mind, after considering the whole case, the defendant would be entitled to a verdict, and even when he was requested by Mr. McSwain, plaintiff's counsel, after this, to explain the meaning of preponderance of the testimony, and he did so, and afterwards requested by Mr. Dean, defendant's counsel, as to the credibility of witnesses, and did so, his charge and explanation could not have misled the jury as to their power and duty in the case, and could not be prejudicial to either side. In Davis v. R.R., 75 S.C. 307,55 S.E. 526, the Court has this to say: "It would greatly embarrass the practical administration of the law for the appellate Court in reviewing charges to the jury to become hypercritical or a stickler for the technical rules of philology in every phrase and clause and reverse verdicts for some loose expression or slight misuse of a word when the general import of the charge stated the law. Any portion of a charge to which exception is taken should be fairly construed with reference to the clear tenor and import of the whole and as an effort to explain the law of a case to men of ordinary or average education and intelligence. The average juryman has little knowledge and less concern about fine distinctions, but generally has a desire and capacity for sufficient information to enable him to do substantial justice between the parties." His Honor left it to the jury to say, under all of the facts and circumstances of the case, whether their verdict should be for the plaintiff or defendant, and instructed them clearly that the plaintiff was required to prove his case by the greater weight or preponderance of the evidence. Exceptions overruled.

Judgment affirmed.

---

Dissenting Opinion

I can not concur in the opinion of the majority.

If the plaintiff had refused to show his ticket, even though he had paid his fare, he would have been properly ejected. If he had on his person other convincing evidence that he had paid his fare, I do not see why he is not required to show it.

It seems to me that it was error to charge that the preponderance of evidence is that evidence which produces conviction. When Courts resort to preponderance of evidence, conviction is excluded. On the criminal side of the Court the State must produce evidence that convinces. The defense is made out by evidence that preponderates. Evidence for the defense may, by preponderance, raise a reasonable doubt. To define preponderance as evidence that convinces, would require the defendant to produce evidence to convince and not to raise a reasonable doubt. The effect is different in the Court of Sessions, but the term "preponderance of the evidence" means the same thing in both Courts. It is true, his Honor elsewhere states the true rule, but this is stated last and much emphasized.

I think it is error to say, as an absolute proposition: "It makes no difference whether one witness testifies against twenty or twenty against one." It may make no difference, but then again it may make a very great difference. One truthful witness may be believed against any number of untruthful witnesses. If one witness of unimpeachable integrity testifies one way, and two witnesses of equally unimpeachable integrity testify to the contrary, could it be said that two would not outweigh one? Now make the number twenty to one; can it still be said that it makes no difference? A just man would say that one man was mistaken, but he would believe the twenty. The one may have an opportunity to observe that the twenty did not have; circumstances may sustain this one, but to say without qualification that numbers make no difference is, I think, error.