Chicago, I.&L. Ry. Co. v. Martin

• Decision Date: 11 March 1902
• Citation: 63 N.E. 247,28 Ind.App. 468
• Court: Indiana Appellate Court
• Parties: CHICAGO, I. & L. RY. CO. v. MARTIN.

28 Ind.App. 468

63 N.E. 247

CHICAGO, I. & L. RY. CO.

v.MARTIN.

Appellate Court of Indiana, Division No. 2.

March 11, 1902.

Appeal from circuit court, Orange county; D. M. Alspaugh, Judge.

Action by Byron E. Martin against the Chicago, Indianapolis & Louisville Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.E. C. Field, W. S. Kinnan, and Wm. Farrell, for appellant. Morris & Hottel, for appellee.

COMSTOCK, C. J.

Appellee was plaintiff below. The complaint is in two paragraphs. They do not materially differ. It is alleged in the first that appellant posted notices in Pekin that on October 20, 1899, it would stop all trains at Pekin; that on said day appellee purchased a ticket from Pekin to Louisville and return; that on the evening of said day, when appellee was returning from Louisville to Pekin, the conductor refused to stop the train at Pekin, and carried appellee on to Salem, a distance of 15 miles; that appellee was compelled to pay the additional fare from Pekin to Salem, was compelled to remain over night at Salem, pay his hotel bill, pay his fare back to Pekin, and could not return to Pekin until the next morning; whereby he was damaged in the sum of $500. The answer was a general denial. The trial resulted in a verdict and judgment in favor of appellee for $500. With the verdict the jury returned answers to two interrogatories, viz.: “First. If you find for the plaintiff, do you assess any amount as exemplary damages? Answer. Yes. Second. If you answer the above question in the affirmative, how much do you allow the plaintiff for exemplary damages? Answer. $498.00, $2.00 cash, -$500.00.” Overruling appellant's motion for a new trial is the only error assigned. The reasons set out in the motion and discussed, are: First, the damages assessed are excessive; second, the verdict is not sustained by sufficient evidence; ninth and eleventh, misconduct of appellee's counsel.

The appellee narrated the transaction substantially as follows: “I lived on a farm near Pekin, Washington county, Indiana. I purchased a ticket from Pekin to Louisville and return. The agent at Pekin told me that train No. 4 would stop at Pekin that night. I went to Louisville on the morning of the 20th, and returned on train No. 4 the same evening. Train No. 4 was the passenger train which passed Pekin some time after nine o'clock at night. The conductor came to me and took my ticket, and looked at it, and handed it back, and said, ‘This train does not stop at Pekin.’ I told him that the agent at Pekin told me that it would stop. I told him that it stopped on the 18th. He said that it did not do any such thing, for that train never stopped there only on special occasions, and when they had orders to stop. He said again, ‘This train does not stop, and you will have to pay your fare on to Salem, or I will have to put you off.’ He gave me the ticket back, and went on through about three or four coaches, and came back and said, ‘Let me see that ticket,’ and he said again, ‘You will have to pay your fare on to Salem.’ I had some bundles on the seat by me on the end next the window, and he reached over for them, and I told him that they were my bundles, and to leave them alone. I loosened his hold on them, and in the struggle he tore the paper off the bundles, and he reached for my hat in a way that he seemed to be angry, and in taking my hat he hit me on the head. When he got my hat, I did not know the man's ways, but had reason to believe that he was angry. He reached to get my hat, and when he got it he went on in the coach five or six seats, and returned with it, and I gave him fifty cents, and he said that was what he wanted, and he gave me back my hat. He gave me back five cents change and a receipt for ten cents rebate. I stayed all night at Salem, and returned to Pekin the next morning on the accommodation train. My fare from Salem to Pekin was forty-five cents. I rode horseback to Pekin that morning. My conversation with the conductor lasted about five or ten minutes. The coach was about half full or more. There were ladies in the coach. I got home at eleven the next morning. I saw notices in the ticket office, post office, and store with reference to No. 4 stopping. I do not remember just how much I paid for my night's lodging in Salem. At that time I was working on my father's farm. I was twenty-one about a week before this suit began. My labor was worth about $15 per month. I lost only a few hours' work. I was out my fare from Pekin to Salem, Salem to Pekin, a few hours labor, my night's lodging, and that was all.” The record discloses that during the trial one of plaintiff's attorneys, while addressing the jury, and before the defendant could interpose an objection thereto, and at the same time pointing to an open volume of the Indiana Supreme Court Reports lying on the table which had been occupied by plaintiff's counsel during the trial, used the following language, to wit: “The books are full of such cases. It is your duty to compensate the plaintiff for the injury sustained, and to inflict punishment on the defendant for its disregard of public duty, and to assess smart money as damages. In that book lying upon that table is a case reported where the facts were very similar to the facts in this case, and in which the jury assessed damages to the amount of $4,800, and in another case $4,500, which sums were held by the supreme court not to be excessive.” The defendant, immediately after said attorney had completed the utterance of the above language, excepted to the same, and asked the court to instruct the jury that they were not to consider the same, or give any weight to it, and were to consider it stricken out of the remarks of the said attorney; but the court refused to so instruct the jury, and refused in any way to instruct the jury concerning the same, to which refusal and ruling of the court the defendant then and there excepted. During the trial of the above cause one of the counsel for the plaintiff, while addressing the jury in the closing argument of said cause, and before the defendant could interpose an objection, used the following language, to wit: “You need not fear to return a verdict for the full amount of the plaintiff's demand in his complaint. In similar cases verdicts for $3,800, $4,500, and for $1,000 have been sustained by the supreme court.” The defendant,...