133 Ind. 480 | Ind. | 1893
This was a suit by the appellant, against the appellee, for a wrongful expulsion from the appellee’s train. The Circuit Court sustained a demurrer to the complaint, and the appellee had judgment on demun’er. The ruling on the demurrer is the only error assigned here.
The substance of the complaint is, “ that the appellee is a corporation organized under the laws of this State; that it owned and operated a line of railroad from Evansville to
There are many other allegations in the complaint, hut they relate to matters occurring after the appellant was ejected from the train, affecting only the measure of damages. It is insisted by the appellant that the theory upon which this complaint is constructed is that the appellant was rightfully in the car as a passenger, entitled to be carried from Sullivan to Earmersburg, and that, in violation of his rights as such passenger, he was wrongfully ejected from said train; while the appellee contends, as we understand the brief, that the complaint is constructed upon the theoi’y that the gist of the action is that unnecessary force and violence was used in ejecting him from the train. The complaint contains some features tending to each of these theories. However, taken altogether, we think the complaint proceeds upon the theory contended for by the appellant, namely, that the injury sought to be redressed is a wrongful expulsion of the appellant from the appellee’s train, in violation of the appellant’s rights as a passenger entitled to be carried to his destination by the appellee as a common carrier; and the sufficiency of the complaint must be tested upon that theory. Tested upon the other theory, there would he no question but that the.complaint would he fatally defective.
The case of Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13, was very much like this in many respects. It was there said by this court, that “¥e have no doubt that the law is, that if a conductor uses unnecessary force in ejecting a passenger, the company is liable, although the conductor may have a right to eject him and to employ reasonable force to expel him from the train. * * *
We, therefore, conclude that the complaint in the case at bar was bad, treating it as proceeding upon the theory that the gist of the action was for unnecessary force and violence in the alleged expulsion from the train.
We think the complaint, upon the theory that it seeks redress for an invasion of appellant’s rights as a passenger, by his wrongful expulsion from the appellee’s train, is equally defective. The reasoning of the case from which we have just quoted ‘fully justifies this conclusion. The act of expelling a person from a railroad train, by means of needless force and violence, is no more unlawful than the expulsion of one without force and violence, who is rightfully on the train, and entitled to be carried as a passenger. It, therefore, follows that a complaint constructed on the latter theory should, by its averment of facts, overcome the presumption in favor of the legality of the conductor’s acts. That is, every fact should be stated necessary to put the conductor in the wroxig. This is so, because a person may be rightfully on a train of a comxnon carrier and be rightfully expelled therefrom for a failure to comply with the reasoxiable rules and regulations of the carrier. We deem it unnecessary to decide whether the complaint sufficiently shows that the train ixx question was oxie upon which the public had a right to demand to be carried at all,
Eor a failure to tender his ticket or to pay the usual fare,
The doctrine announced in the case from which we have quoted, and which we again approve and apply to this case,, is that the law will not presume that the conductor did an unlawful act, but will presume that his acts were lawful,, until the contrary is made to appear affirmatively by suitable allegations. It follows that tire complaint, upon the theory most favorable to the appellant, is insufficient for failure to allege that the appellant surrendered, or offered to surrender, to the conductor his ticket, or that he tendered the usual fare. Unless he did one or the other of these acts, he was. liable to a rightful expulsion from the train.
But there is still another reason why the complaint was-bad on appellant’s own theory, and that is that there is no allegation in it that by the rules of the company the train in question was allowed to stop at the station named on his ticket, or that it was allowed to stop at Farmersburg, his destination. The case of Chicago, etc., R. R. Co. v. Bills, supra, from which we have quoted, was an action very much like this, for a supposed wrongful ejection of the plaintiff from the defendant’s train. The complaint in that case was held bad on both theories discussed in this opinion, and on the theory of wrongful expulsion of one rightfully on the train, as contra-distinguished from the theory of a wrongful expulsion by means of needless force and violence to one wrongfully on the train, this court said in that case, that, “As it is incumbent upon the plaintiff in an action of this kind to show that he was rightfully on
Upon this authority we hold that it was necessary to allege that the train on which the appellant attempted to take passage was one that, by the rules and regulations of the company, was allowed to stop at Earmersburg. This defect in the complaint is not cured by the allegations therein that “the ticket agent told and directed the appellant that he could take passage on said train of cars.” We need not determine what the remedy of a person would be who purchases a ticket for a particular station on a railroad for a particular train, in ignorance of the rules of the company that such train is not allowed to stop at such station, and the ticket agent at the same time misinforming him that the rules of the company do allow the train to stop at such station, by which he is injured. That is not the case presented by the complaint. It is simply a statement and direction of the ticket agent, that the “ appellant could take passage on said train,” and no intimation as to what the rules of the company provided, as to whether that train was allowed to stop or not at Earmersburg. He should have inquired what the rules were in that respect, and then he would have known whether to rely on the ticket agent’s statement or not. Had the ticket agent told him that the rules forbid the stopping of the train at such station, and yet directed him to take passage on it, he would have done so at his own peril, because it has been held by this court that a ticket agent or a conductor can not hind the company by an agreement or statement that a train shall stop at a station whereat such stop is forbidden by the rules of the company. Pittsburgh, etc., R. W. Co. v. Nuzum, 50 Ind. 141; Ohio, etc., R. W. Co. v. Hatton, 60 Ind. 12.
We therefore conclude that the complaint did not state facts sufficient to constitute a cause of action against the
The judgment is affirmed, with costs.