132 Ga. 552 | Ga. | 1909
In the petition as originally filed it is alleged, in substance, that the plaintiff boarded the Birmingham train at night with a ticket authorizing him to travel from Atlanta to Birmingham; that he took his seat in a passenger-coach of the train, and after it had proceeded a short distance from the terminal station the' conductor of the train came to petitioner, and without asking him for his fare or his ticket, or giving him an opportunity to produce his ticket, caught him roughly by the arm and told him that he had to get off the train; and summoning the porter to assist him, he violently and forcibly dragged petitioner to the door of the car, then out on the platform, and shoved and kicked him off of the train, without any provocation whatever on the part of petitioner. Plaintiff averred that he was behaving himself properly, and that there was no reason why he should have been treated in the manner described. In the declaration it is averred that plaintiff was mortified and humiliated, and other elements of damage were alleged. The case proceeded to trial, and on the trial the plaintiff testified that he went into the car and went to sleep, and the next thing he knew they were putting him off the train. Petitioner asked them what they meant by it, and b.efore he could realize what they were •doing he struck the ground. He does not remember what the conductor said to him until after he had been put off the train. He testified that the conductor did not ask him for his ticket, or for anything. In the amendment which was disallowed the plaintiff averred that the defendant failed in its duty to him as a passen
Conceding that the amendment' was germane to the cause of action as originally stated in the petition, we do not think that its rejection is cause for a new trial; as, under the evidence in the ease, a verdict for the defendant was demanded. It is to be remembered that this amendment was tendered after the .evidence for both sides had been concluded. Its rejection did not deprive plaintiff of the right to introduce evidence in his favor. He had already introduced, under the allegations of the original petition, all of the evidence bearing upon the allegations in the'amendment which he desired or was able to furnish. That the plaintiff was ejected from the train is undisputed, but his’ ejection was the result of provocation given by him and conduct upon his part that imperatively required the conductor, in the discharge' of the duty which he owed to the railroad company and to other passengers in the car, to remove the plaintiff from the train. The evidence establishing the fact of the provocation given by the plaintiff and of such gross misconduct on his part as necessitated his ejection, is not controverted in the testimony of the plaintiff himself. He
The conductor testified: “I went to him and asked him for his ticket, and he told me he didn’t have any ticket. I asked him where he was going, and he said he wasn’t going anywhere, he was going to stay here. I said, ‘Well, you must have a ticket somewhere. Feel in your pockets and see if you haven’t got a ticket.’ He said, ‘No, I haven’t got a ticket.’ I said, ‘Well, you will have to pay your fare then.’ He said, ‘No, T won’t, pass me on by.’ I said, ‘No, I can’t do that; you will have to give me a ticket or your fare one.’ He said, ‘Well, I won’t give you nothing.’ I talked with him, I reckon, five minutes, begging him to give me his ticket, or tell me where he was going, or pay his fare, or something, and he cursed me for everything nearly. He said, ‘God damn you, I am not going to give you nothing,’ or something like that. ‘To hell with you. What in the hell is the matter with you?’ There were some ladies on the seat behind him, and some more across the aisle, and I said, ‘You will have to get off if you won’t give me your ticket, or pay your fare. If you curse me in the presence of these ladies, I will have to put you off.’ That’s when he jumped up and said, ‘What in the hell is the matter with you.’ I pulled the bell-cord first and stopped the train, and pulled him out in the aisle and carried him on out and put him off. That was in the first-class coach. He was on the left-hand side, about the second or third seat. I saw a bottle; he tried to hit me with it. He got it out of his pocket. It looked like whisky; it looked red. I just pushed him along in front of me — caught him by the arm and got him out in the aisle and pushed him along. I did not strike him with my feet or my hands, or use any abusive language to him. I treated him as nice as a man could. The train was stopped and was standing still. I had the porter to get off on the ground and handed his grip and overcoat to the porter, and T also had -the
The testimony of the conductor is corroborated by that of several witnesses who were passengers in the coach where the plaintiff was and from which he was ejected. One of these passengers, Mrs. Elmer, testified: “When I went on the train I told the conductor to wake me up when we got to Austell. When we got a little way out of town, I thought I was near Austell. I heard a commotion in the train, and a gentleman using some pretty bad language, ■and the conductor was carrying him out. . . I don’t remember seeing him go out of the train. When I heard the commotion I woke up. I just heard a few words pass as the conductor and the man was coming out. The other man was resisting against the conductor. The passenger was doing the cursing. . . I don’t know whether the man was drunk or not. I didn’t see him take a drink. I was asleep when the conductor went to him, and didn’t see him. I was not certain who was doing the cursing, but imagine the passenger was doing it.”
Mrs. Roberts, who was a passenger, testified: “I remember the plaintiff on that train. He was asleep, and the conductor came and woke him up and asked him for a ticket, and he said he didn’t have any, and refused to give it up. He [the conductor] told him, ‘You must hunt your ticket up by the time I come through again.’ He went on and took up the rest of the tickets, came back and asked him for his ticket again; and he got mad and said he wasn’t going to give him any ticket, he didn’t have any; and he drew a
E. E. MeEver testified: “I had been losing right smart sleep, up to that time, and I went to sleep when I went in that car. I left the ticket where the conductor could get it. . . What woke me up was that argument about a ticket. The conductor asked a man, I suppose Mr. Watson, though I couldn’t swear who it was, for a ticket; and he told him he didn’t have a ticket. He asked .him where he was going, and he said he wasn’t going anywhere. . . He told Mm he would put him off the train. He told him he would do no such thing. I don’t remember the argument exactly, but words to that effect; and then he proceeded to put him off. There was some cursing done there by the passenger. . . The man drew a bottle from his pocket, which looked like a pint, bottle. . . He made a motion like he was going to hit him [the conductor], but I don’t think he tried very hard to hit him. The man was drunk. . . The conductor made the remark Y will put you off.’ He said, ‘You won’t do no such' a God damn thing.”’
G. D. Eoberts, sworn by the defendant, gave testimony corroborating the conductor and the other witnesses who had testified for the defendant, showing that the conductor was patient, courteous, and reasonable, and that he only ejected the plaintiff from the train when it became his imperative duty to do so. There is other testimony in the ease, corroborative of the witnesses for-the defendant whom we have named above; but it is unnecessary to set out more of the evidence. No circumstance is testified to either by the plaintiff himself or any of the witnesses which would have
While, under the circumstances and facts shown by the evidence in the record, the conductor had the right and was under the duty to eject the plaintiff from- the train, it was also his duty to observe due care and diligence to avoid inflicting upon him any personal injuiy, and not to use violence or unnecessary force in removing him from the train, as well as to see that the ejected passenger was not placed and left in an unsafe or dangerous locality; and we assume, inasmuch as there is no complaint as to the charge of the court upon this branch of the case, that the law relative thereto was properly stated to the jury by the court in his instructions to them.
Having held that the evidence in the case demanded a verdict in favor of the defendant, it is unnecessary to deal with the specific assignments of error upon the refusal of the court to give in charge certain instructions contained in written requests. Kelly & Jones Co. v. Moore, 128 Ga. 683 (55 S. E. 181).
Judgment affirmed.