Wightman v. Chicago & Northwestern Railway Co.

73 Wis. 169 | Wis. | 1888

Oassoday, J.

When the jury first announced their verdict, the answer to the fifteenth question was $300, and the answer to the sixteenth question was, in effect, nothing, instead of the amounts above stated. The court thereupon intimated to the jury that such findings were inconsistent with themselves; that the jury had failed to observe the instructions of the court; that by1- reason thereof they were at liberty to go to their room for further consultation; that if they meant to answer as they had indicated, then, when they came in, they should say so. Thereupon the counsel for the defendant asked to have the jury polled, to see if that was in fact their verdict; but the court)1 declined, for the time being, to receive such verdict, until the jury should go to their room for consultation. The court thereupon indicated the nature of some of the instructions which had previously been given to them; that no opinion had been intimated to them as to whether they should find anything for injury to feelings or not; that that question was left entirely to them. The defendant’s counsel thereupon requested the court to receive an$ record such verdict, which was refused, and the jury thereupon retired for further consultation. Upon returning into court they answered the fifteenth question, forty-six cents, and the sixteenth, $300; and thereupon the court, for the same reasons, again refused to receive said verdict, and ordered the jury to again retire for further consultation, which they did; and thereupon they again returned into court with the verdict complete and substantially as found in the above statement of facts; and the same was thereupon received by the court and entered of record. The jury had been told in the general charge, in effect, that if they found for the plaintiff and that he was entitled to damages for injury to his feelings, then in answering the fifteenth question they should state the total amount of damages allowed,— as for loss of time, which should be “ simply nominal,— six cents,” and damages for injury to his feelings, and the amount he paid for the ticket, in one general sum; and then, in answer to the sixteenth question, that they should “ state what damages,” if any, “ he suffered for injury to his feelings.” It is manifest that the jury misapprehended these instructions until their last consultation. The learned trial judge scrupulously avoided anything like dictation as to whether the jury should find in favor of the one party or the other upon any of those items, but merely insisted upon having the questions submitted determined by the jury with* a correct understanding of the instructions which had been given to them on that subject. Such action was manifestly within the province of the court. Fick v. Mulholland, 48 Wis. 419; State ex rel. White Oak Springs v. Clementson, 69 Wis. 628; McMahan v. McMahan, 53 Am. Dec. 482; State v. Overton, 61 Am. Dec. 671; The Work of the Advocate, 676, and oases there cited. The request to poll the jury was before the verdict was thus perfected, and hence, as a peremptory right, was premature.

The several findings of the jury are all supported by the' evidence. A railway company may, undoubtedly, make reasonable regulations for the safe and orderly conduct of its business, and to protect itself against impositions. Plott v. C. & N. W. R. Co. 63 Wis. 511; Mosher v. St. L., I. M. & S. R. Co. 127 U. S. 390; 2 Am. & Eng. Ency. Law, 759. But this does not authorize such company, under the guise of regulations, to abridge or impair a passenger’s statutory or legal rights. The statute required the defendant, upon application “at its ticket station” in Elroy, and payment of the price, to sell to the plaintiff “ round-trip tickets, good for first-class passengers ” from that station to Wonewoc and return. Sec. 1803, R. S. It stands confessed that the defendant did so sell and deliver to the plaintiff the ticket in question upon such application, payment, and purchase. It is, moreover, confessed that such ticket, in the condition it was at the time of purchase, entitled the plaintiff at the time and place he did to board the train in question and ride' thereon to Wonewoc, and thereafter to return therefrom to Elroy by any train stopping at those stations and carrying such first-class passengers. The only defense to this action for expelling the plaintiff from the train is the fact, as found by the jury, that the white portion of the ticket was broken apart and separated from the red portion, without any carelessness or negligence of or on the part of the plaintiff, at the place where punctured for that purpose, before it was'offered to the conductor for passage. • But the respective parts of the ticket were numbered, alike, and each contained the letters “ R. T.,”— the one having thereon, “ Going. Elroy to Wonewoc; ” and the other, “ Returning. Wonewoc to Elroy.” The jury, moreover, found that both parts of the ticket were produced by the plaintiff and exhibited to the conductor when he first came to the plaintiff to collect his fare, and that the plaintiff still held both parts of the ticket. Manifestly the two parts of the ticket belonged together and had formerly been attached to each other. The plaintiff appears to have been unable to account for their separation, except that he had carried the ticket in his pocket for some months. The ticket was “ punctured for the purpose of separation; ” and, of course, with the expectation that it would bo' separated when first used. It is claimed, however, that the words “ Not good for passage,” on the going part of the ticket, and the words “if detached,” on the returning part of the ticket, were, together, in effect, a stipulation that the ticket should be deemed forfeited if such parts should be separated by any other person than the conductor. But such are not the words of the contract, and if such is to be deemed its legal effect then it is because such stipulation is to be implied from the words employed. Had the going part of the ticket alone been presented to the conductor, there might have been some force in the argument; for to allow that part alone to be used, unaccompanied by the other part, would have the effect to convert this “round-trip ticket” into two separate single-trip tickets, to be used promiscuously. That would permit the returning part to be used before the going part, and lienee give to the holder a right not secured by the statute. The words “ Not good for passage — if detached ” would seem to ha.ve been so placed upon the ticket to prevent imposition by a separation of the parts and the use of each as a single-trip ticket. But where such parts of the ticket become separated by such inadvertence, and are then in good faith both presented together and at the same time to the same conducter on the going trip, the purpose of such words would seem to be as fully attained as though the two parts of the ticket had not previously been separated. In other words, the presentation to the conductor of the two parts of tbe ticket, under the circumstances found, is the same, in legal effect, as though such parts had not been detached when so presented.

See note to this case in 40 N. W. Rep. 693.— Rep.

It is to be remembered that the ticket was the mere evidence of the contract of carriage, and that such evidence consisted of two parts designed for separation. To imply such forfeiture of the contract from such mere inadvertent separation, under the circumstances found, when no word, letter, or figure on either part of the ticket was thereby obliterated, and when no perceivable injury to the defendant could result therefrom, would be to destroy a statutory right upon the merest technicality and in the absence of a clearly expressed stipulation to that effect. Even a strict literalism is not to be so rigidly enforced as to defeat the manifest purpose of a contract under a statute. Whether a different rule should prevail where the passenger wilfully, and against the protest of the conductor, separates the coupons or parts of a ticket, as in some of the cases cited, need not be here considered.

It follows,that, upon the facts found, we must hold the defendant liable. Upon the whole record, and the repeated rulings of this court, we cannot say that the damages are excessive.

Biy the Coicrt.— The judgment of the circuit court is. affirmed.