105 Va. 729 | Va. | 1906
delivered the opinion of the court.
This is. an action on the case, brought to recover damages for ■ wrongs and injuries alleged to have been sustained by reason of the plaintiff’s having been unlawfully ejected from a train, of cars of the defendant company by the conductor of the-train.
It appears that the plaintiff applied to one Draper, the defendant’s ticket agent at Olinchport, for a ticket from that point to Appalachia. He paid the agent the correct fare, hut the-agent, by mistake, gave him a ticket to Duffield, an intermediate-
After plaintiff was ejected from the train, still protesting, he •called for his valise, and while the conductor went back in the ear for the valise plaintiff became engaged in an altercation with Moss while standing upon the ground holding to the rod "usually taken hold of by passengers when getting upon the "train, and Moss, who was standing on the step or platform of the car, kicked plaintiff in the mouth and felled him to the ground. The conductor returned with the valise and threw it from the train to the ground, saying to plaintiff, “Take the •damned old grip and go to hell with it.” The train then moved on, leaving plaintiff alone, until a friend at the next station, hearing of what took place, went back and took him to his store where he remained overnight; and it appears that his ankle was sprained, his lips and mouth cut, and some of his teeth knocked loose. It is admitted by the agent at Clinchport that the plaintiff called for a ticket to Appalachia, and paid the price of a ticket to that point, but he says that he made a mistake and issued the ticket to Duffield, an intermediate station.
At the trial the plaintiff was awarded damages in the sum of $2,500, and to the judgment of the court upon the verdict ■of the jury this writ of error was awarded.
During the progress of the trial, after the evidence was
We do not think there is any error in this ruling, for if the-defendant, under the circumstances, had a right to eject the-plaintiff from its train, it did not have the right, as we shall presently see, to use more force than was necessary to do this,, and if in using tortious means in so doing the plaintiff sustained injury, a right of action accrued to him to recover damages for those injuries. He might have, under the circumstances,, waived the tort and sued for breach of his contract, but he did not choose to do this.
It is earnestly contended on behalf of the defendant that the face of the ticket, as between the conductor and the plaintiff, was conclusive evidence as to the extent of the latter’s right to ride; while the plaintiff’s contention is that it was the duty of the conductor to accept his word for the transaction between, him and the ticket agent.
The defendant company, like all other carriers of passengers,, had a rule or regulation requiring a passenger to produce a tibket to his destination or pay fare, under penalty of expulsion from the train. Such a rule is universally held to be a reasonable one, and within the power and right of the carrier to make; but both upon reason and authority, while a carrier may enforce this rule, it has no right to inflict wrongs and injuries upon a passenger in ejecting him from a train; in other words, the right to eject the passenger under such circumstances would not excuse the carrier for using more force or violence in doing so than is necessary; and if unnecessary force and violence be used, resulting in wrongs and injuries to the passenger, the carrier is clearly liable for damages therefor.
First, as to .the right of the defendant to eject the plaintiff'
In Frederick v. Marquette, &c., R. Co., 37 Mich. 342, 26 Am. Rep. 531, it was held that as between a conductor and passenger, the latter’s ticket is conclusive evidence of the extent of his right to travel, and he must produce it when called on as evidence of his right to the seat he claims. “In determining the duties of conductors and the rights of passengers, the methods generally adopted by common carriers to carry on business successfully, must be regarded.” The opinion in that case, after holding that such a rule and regulation of a carrier is reasonable, says: “It is within the common knowledge or experience of all travelers that the uniform and, perhaps, the universal, practice is for railroad companies to issue tickets to passengers with the places designated thereon from whence and to which the passenger is to be carried; that these tickets are presented to the conductor or person in charge of the train, and that he accepts unhesitatingly of such tickets as evidence of the contract entered into between the passenger and his principal. It is equally well known that the conductor has but seldom, if ever,' any other means of ascertaining, within time to be of any avail, the terms of-the contract, unless he relies upon the statement of the passenger, contradicted as it would be by the ticket produced, and that even in a very large majority of cases, owing to the amount of business done, the agent in charge of the office, and who sold the ticket, could give but very little, if any, information upon the subject. That this system of issuing tickets, in a very large majority of cases, works well, causing but very little, if any, annoyance to passengers generally, must be admitted. There, of course, will be cases where a passenger who has lost his ticket, or where through mistake the wrong ticket his been delivered to him, will be obliged to pay his fare a second time in order to pursue his
It will be observed that in that case the right to recover was rested solely upon the ground that the contract made by the passenger with the ticket agent entitled him to ride to a destination beyond the point called for by the ticket, and no charge was made that greater force or violence than was necessary was used by the officers of the carrier in ejecting the passenger from the train; and it was therefore held that there was no proof of' the case alleged.
In a note to Commonwealth v. Powell (Mass.), 41 Am. Dec. 475, Mr. Freeman states that the rule is that the passenger “should either pay the fare demanded or quit the train; and in either case we think he ought to recover, as a part of his damages, reasonable compensation for the indignity put upon him by the company through the default of its servant. But he can add nothing to his claim by remaining in the car until forcibly ejected, for the rule under which he is ejected, being reasonable, is a complete protection to the company and its servants against the recovery of any damages, directly or indirectly, for the assault made necessary by his own obstinacy, if no more violence than is required for his ejection is used. Such a case stands upon an entirely different ground from that of a
In Baldwin’s American Railroad Law, 292-93, it is said: “But, as between the passenger and the conductor of the car in which he is, the terms of the ticket or check are conclusive, and the right to ride upon it on that train is, for the time being, to be determined accordingly. ... In any of these cases where the ticket varies from the true contract, if the passenger is ejected, the conductor commits no trespass; but the company is liable to an action for breach of the contract. The damages for this breach will not be aggravated by the expulsion from the car. The plaintiff should have left it voluntarily.”
The same rule is stated at length.in 4 Elliott on Railroads, section 1594. See, also, Bradshaw v. South Boston R. Co. (Mass.), 46 Am. Rep. 481; McKay v. Ohio River R. Co., 34 W. Va. 65, 11 S. E. 737, 9 L. R. A. 132, 26 Am. St. Rep. 913; Moshur v. St. Louis R. Co., 127 U. S. 390, 8 Sup. Ct. 1324, 32 L. Ed. 249. Many more authorities could be cited in support of the view taken in Frederick v. Marquette, &c., R. Co., supra, but we deem it unnecessary.
It is contended, however, on behalf of the plaintiff, that Frederick v. Marquette, &c., R. Co., supra, has been overruled by the subsequent case of Hufford v. G. R. & I. R. Co., 64 Mich. 631, 31 N. W. 544, 8 Am. St. Rep. 859, but that contention cannot be sustained. The case of Hufford v. G. R. & I. R. Co. was twice before the Supreme Court of Michigan, being reported first in 53 Mich. 118, 18 N. W. 580, wherein the opinion by Cooley, C. J., expressly approves the decision in Frederick v. Marquette, &c., R. Co., and holds that the ticket was conclusive of the extent of the passenger’s right to ride, when the final destination was manifest on the face of the ticket, though a different result was reached in the case from
“The plaintiff, therefore, in this case, if it was found that the ticket he held was not good by reason of former use and cancelment, should have paid his fare when it was demanded, and looked afterwards to the railroad company for the refunding of the money,' and for compensation for any trouble he might be put to in obtaining it. . . . But we are all of opinion that if the plaintiff’s ticket was apparently good, he had a right to refuse to leave the car.”
The same rule was upheld in the later case of Mahoney v. Detroit Street R. Co., 93 Mich. 612, 53 N. W. 793, 18 L. R. A. 335, 32 Am. St. Rep. 528.
Unquestionably there is a great conflict of authorities as to what should be the controlling rule in such cases, and we have "been cited to a number of them by plaintiff’s counsel which take the opposite view, but we do not deem it necessary to review them at length, as, in our opinion, the more satisfactory and safe rule is that adhered to in the line of cases beginning with Frederick v. Marquette, &c., R. Co., supra.
Under this rule the defendant’s conductor in this case had the right to eject the plaintiff, and the ejection, of itself, was not wrongful or tortious, and no suit for tort could be maintained unless undue force or violence accompanied the ejection, his remedy being in an action for a breach of the contract with defendant’s agent at Clinchport, where plaintiff called for and paid for a ticket to Appalachia; but, as we said in the outset, an action of tort may be maintained if undue force or violence was used in ejecting the plaintiff.
There is considerable conflict of testimony as to the language and bearing of the plaintiff and the conductor, respectively, both inside and out of the car, and also as to the treatment the plaintiff received at the hands of the conductor and the passenger who assisted him, after the plaintiff was ejected. The plaintiff himself admits that if he had left the train without resistance when the conductor stopped it and ordered him to leave, he would have been subjected to none of the subsequent insults and injuries of which he complains. The question, therefore, is whether the plaintiff could recover anything for injuries or insults which' he received subsequent to his refusal to leave the ear and consequent upon his resistance or misconduct.
The court was asked to tell the jury that the plaintiff could not recover for damages which he sustained as the result of his own negligence or wrongful act alone, or as the result of a concurrence of his own negligence or wrongful- act with the negligence or wrongful act of the defendant; and was also asked to tell the jury that the plaintiff could not recover in this action for any injuries to which his own negligence or default proximately contributed. It clearly appears that there was no wilful wrong done to the plaintiff, nor wilful injury or insult offered to him until after he himself, by his resistance of the conductor, had precipitated the struggle and the altercations which ensued.
We think that the jury should have been so instructed. If the defendant had the right to eject the plaintiff from the car, he surely should not be entitled to recover for injury or insult made necessary by his own wrongful conduct. It is true that
“A”
“The court instructs the jury that if a railroad ticket, by mistake of the agent who issued it, does not conform to the contract which in fact was made, nevertheless, as between the passenger and conductor, the terms of the ticket are conclusive, and the right of the passenger to ride on the train is to be determined by the face of the ticket; and if the conductor ejects the passenger by reason of such passenger’s failing to recognize the terms of the ticket, using only such force as is necessary to eject him, the conductor commits no tort or trespass, and the passenger is limited, in any suit for such ejectment, to such damages, and only such damages as resulted proximately from the agent’s mistake, and cannot recover for damages which he sustains as the result of his own negligence or wrongful act alone, or as the- result of a concurrence of his own negligence or wrongful act with the negligence or wrongful act of the defendant.”
“G”
“The court instructs the jury that the plaintiff cannot recover in this action for any injuries to which his own negligence or default proximately contributed.”
In Coleman v. N. Y. & N. H. R. Co., 106 Mass. 160, which was an action against a railroad corporation for assault and battery of the plaintiff in expelling him from a car where he was wrongfully, the defendants contended that the force they used was necessary to overcome the force used by him to resist expulsion, and he contended that the force he used was necessary to resist the blows they struck him. The jury were instructed that this was so, if they could make the distinction upon the evidence; but left them to infer that the burden was on the defendants to establish it. “Held: That the omission to guard the instruction against such an inference gave the defendants good ground of exception”; and that “in an action against a railroad corporation for blows struck upon the plaintiff by its servants in removing him from a car from which they had a right to expel him, it is a question of fact for the jury whether the blows were struck in the exercise of justifiable force to effect the expulsion and overcome force, with which he was resisting it.” If assistants employed by the conductor of a railroad train to expel a person from the car strike him unjustifiably in expelling him, the railroad corporation is liable, although the blows were struck against the conductor’s order.”
The trouble with the instructions given in this case is that they do not distinguish between the force used in ejecting the plaintiff from the car, made necessary by his resistance, and the injuries he received after having been ejected from the car,
“It is the duty of a passenger, if he has not the required ticket or token evidencing his right to travel on that train, to pay his fare or quietly leave the train when requested, and resort to his appropriate remedy for the damages he has sustained; and if he attempts to retain his seat, without paying his fare, and is expelled by the conductor, using no more force than is necessary, he can recover no damages for the injury incurred by such expulsion.” Peabody v. Oregon Ry., &c., Co., 12 L. R. A. 823, and note. See, also, McGowan v. Morgan & La. R. Co., 5 L. R. A. 17, and note, p. 820.
In such a ease it is essential that the instructions to the jury be not such as to mislead them into a failure to distinguish between the force used in ejecting the passenger, made necessary by his resistance and own misconduct, and forcé or violence used by the officers or agents of the railroad company not made necessary by the passenger’s resistance or misconduct.
We are, therefore, of opinion that the court below erred in not giving defendant’s instructions “A” and “G.”
There are other exceptions taken to the rulings of the trial court, but we do not deem it necessary to consider them, as some of the questions presented may not arise at the next trial; and should the evidence be practically the same as at the last the instructions then given by the court, together with defendant’s instructions “A” and “G” will, we think, fairly submit the case to the jury.
The judgment of the Circuit Court will be reversed and annulled, and the cause remanded for a new trial.
Beversed.