40 W. Va. 271 | W. Va. | 1895
Trice sued the Chesapeake and Ohio Railway Company, in Cabell county, for damages for his ejectment from a train, and, on demurrer to evidence, recovered judgment for five hundred and fifty dollars, and the defendant brought the case here.
The facts, in short, are as follows: Trice boarded a passenger train on the 24th of April, 1893, at Charleston, to go-to Huntington. He had a mileage ticket issued for one thousand miles, having remaining unused coupons for forty miles’ travel. -These tickets are good for one year from issue. This one had stamped upon it as date of its issue March 4, 1892. For date of expiration there were printed on it the figures 189 — , to be filled out with the particular year of issue; and there was inserted in ink, with the pen, the figure three, making the date of expiration 4th March, 1893; but over the three was written with pen and ink the figure 4, making the expiration considering the figure 4 as the right one, and disregarding the figure 3, 4th March, 1894. The question is, when was this ticket issued? When fare was demanded, Trice gave the collector his mileage ticket as paying forty miles’ fare, and fifty cents in money, which the collector accepted, and passed on, saying that there was some change coming to Trice, which he would hand him.
Was the mileage ticket still good for forty miles’ travel? That depends on whether it was issued in 1892 or 1893, and this depends on whether the stamp date, 4th March, 1892, was a mistake as to the year, or was right, and the figure 4, written over the figure 3 in its date of expiration, was wrongfully put there by forgery. Trice swears he purchased the ticket 4th March, 1893, and that he did not put the figure 4 in the date of expiration, but that the agent at Huntington did. There is no evidence to the contrary; and, even if we were not deciding the case on a demurrer to evidence, we would be required to say that the facts are as Trice states them; but the more certainly and plainly that is our duty under principles governing us upon a demurrer to evidence. Where is the registry kept at the Huntington office, if any
In the McKay Case, 34 W. Va. 65 (11 S. E. Rep. 737) we held that where a railroad company agreed to sell a ticket Tor passage between certain points, but by mistake wrote the ticket for passage to other points, the passenger could not ask passage where the ticket did not carry him, it being •apparently not good for the passage demanded; and the passenger leaving the car, at the command of the conductor, but without force, could not sue in tort, but must sue for breach of contract by the company in agreeing to carry him that passage, and failing therein by not giving him the ticket contracted for. That case was confessedly somewhat close, but I still think it was rightly decided, and sustained by cases of eminent authority. There the ticket showed •nothing for, and all against, the right of the passenger to ride, which he claimed, and was transparently not good — a mere blank or nullity as to the ride claimed; while here it is apparently good, more apparently good than bad, and turning out in the end to be good. There is a difference, though it cost reflection to see it. In this case I go upon the theory, which I think is correct, that the plaintiff’s grievance is not a breach of contract in agreeing to sell him a ticket for a certain passage, and giving him a wrong ticket, as in the McCay Case, but in the fact that he had a ticket •entitling him to go to Huntington as he demanded, and in its wrongful rejection and his expulsion. He had a ticket turning out ultimately to have been good from the start. The confusion as to date arising from the agent’s error, without fault in the passenger, does not change its validity. In Railroad Co. v. Rice, 64 Md. 63 (21 Atl. 97). a party had a ticket for a round trip containing two coupons, one each way; and the conductor tore off the wrong one, and left the other one with the passenger for return, and the •conductor on the return ejected him, and he recovered. He
Is the amount of damages found excessive? While, from the first I have had no doubt of the plaintiff’s right to recover, my inclination was. to think that the jury had imposed too heavy a hand on the company, and compensated Trice beyond any harm or loss he suffered. Not a finger was laid upon him to force him from the train, but he got off of his own action, under protest. It does not appear that he suffered from weather. He got off at a regular station. It is not shown that he was greatly delayed, or lost anything thereby. He says he had important business in Huntington, but what, or whether he lost anything, he does not say. There is no evidence that he was exposed to public humiliation, or that what was said was heai'd by other passengers. The appearance of the ticket might well suggest a doubt to the conductor. Where a passenger is wrongfully ejected from a train by a conductor for non-payment of fare, in good faith, in execution of the rules of the company, as he supposes, without malicious intent or circumstances of indignity
But here the collector charged upon Trice the crime of forgery, and, where circumstances of insult and indignity attend, that fact may be considered fairly by a jury in estimating damages. In Railroad Co. v. Fix, supra, where the verdict was six hundred dollars, a distinguishing feature was the conductor’s charge that plaintiff wanted to cheat the company. This isi a matter considered everywhere. But as is said in 3 Suth. Dam. § 953: “In actions for personal injuries, and in cases generally where there is no fixed legal rule of compensation, the theory of the law is that the decision of the jury is conclusive, unless they have been misled, •or their verdict has been influenced by corruption, passion, or prejudice. Unless the verdict finds an amount so out of proportion to'the actual injury as to evince such misleading, •or the presence of some malign influence, it will be sustained, although it may materially differ from the judgment of the court. But if the amount of the verdict so far exceeds or falls short of what to the court appears to be just compensation as to induce the belief that the jury have not given the case a fair and dispassionate consideration, it will be set aside.” Our own authorities are the same, and in such cases hold that the finding of the jury governs, unless ■so ( xcossive as to induce the belief thai it was governed by partiality, corruption or prejudice, or misled by some mistaken view of the merits of the case. Farish & Co. v. Reigle, 11 Gratt. 697; Pegram v. Stortz, 31 W. Va. 220 (6 S. E. Rep. 485); Boster v. Railway, 36 W. Va. 318 (15 S. E. Rep. 158); Sheets v. Railroad Co., 39 W. Va. 475 (20 S. E. Rep. 566). Under these principles, we can not interfere with the amount found. In a note to Railroad Co. v. Guinan, 13 Am. & Eng. R. Cas. 41, are collected cases in which verdicts have been held excessive for ejection of passengers and others where large verdicts have been sustained, but they afford no general guide. Certainly, where the conductor is honestly executing his duty, though he is mistaken, and there is no force,'
We think this verdict heavy, but we hesitate to interfere with the finding of the jury. Affirmed.