Chicago, St. L.&P.R. Co. v. Graham

• Decision Date: 11 November 1891
• Citation: 3 Ind.App. 28,29 N.E. 170
• Court: Indiana Appellate Court
• Parties: CHICAGO, ST. L. & P. R. CO. v. GRAHAM.

3 Ind.App. 28

29 N.E. 170

CHICAGO, ST. L. & P. R. CO.

v.GRAHAM.

Appellate Court of Indiana.

Nov. 11, 1891.

Appeal from circuit court, Henry county; E. H. BUNDY, Judge.

Action by George Graham against the Chicago, St. Louis & Pittsburgh Railroad Company for damage in being unlawfully ejected from defendant's passenger train. Plaintiff had judgment for $250, and from the rulings of the court defendant appeals. Affirmed.

J. H. Mellott and Burchenal & Rupe, for appellant.

CRUMPACKER, J.

Graham sued the railroad company for damages for unlawfully ejecting him from one of its passenger trains. The complaint alleges that the company ran all excursion train from the city of Indianapolis to the city of Richmond, and return, on the 12th day of May, 1889, and prior thereto it advertised such excursion train along the line of its road by “posters,” giving the time of its arrival and departure at the various stations, and stating the fare for the round trip; that said company so advertised said train to leave the station at the village of Ogden at --- o'clock A. M. on said 12th day of May, and that the fare for the round trip from said station would be 70 cents; that plaintiff desired to go on said excursion, and went to the station at Ogden in proper time to take passage on said train, and before the arrival of the train he undertook to procure a round-trip excursion ticket, but could not, for the reason that the company had negligently failed to have any tickets for sale at said station; that said train stopped at said station for the purpose of receiving passengers, and plaintiff, being unable to purchase a ticket, and having the money to pay his fare, embarked upon said train, supposing he could buy a ticket from the conductor; that thereafter the conductor in charge of said train came to plaintiff to collect his fare, and he paid said conductor the sum of 95 cents, and “demanded that he be carried from said station, Ogden, to the city of Richmond, and return; that said defendant accepted said sum of money for such fare, and gave the plaintiff a receipt therefor;” that, upon the return of said train in the evening of said day, the plaintiff took passage thereon for Ogden, and the same conductor was in charge of the train to whom plaintiff paid his fare on the trip to Richmond; that while said train was proceeding on its journey, and was about a mile west of the city of Richmond, said conductor came to the plaintiff, and demanded his fare to Ogden, whereupon plaintiff exhibited to him the receipt for the fare paid as aforesaid, and refused to pay any more, and the conductor thereupon stopped said train and unlawfully expelled plaintiff therefrom; that it was dark and raining, and plaintiff was unacquainted in that vicinity, and was compelled to, and did, walk to his home, -a distance of 35 miles; whereby he was damaged, etc. A demurrer filed to the complaint was overruled and exceptions saved. The defendant answered in three paragraphs. The third paragraph was adjudged insufficient upon demurrer. The plaintiff replied by general denial, and the issues thus formed were tried by a jury, who returned a special verdict. The defendant moved successively for a venire de novo and for a new trial; but both motions were overruled, and the plaintiff was awarded judgment upon the verdict.

The first question for consideration arises upon the ruling of the court upon the demurrer to the complaint. It is claimed on behalf of the company that the theory of the complaint is the breach of a special contract between the appellee and the conductor, by the terms of which the former was to be carried to Richmond and return for 95 cents, and it is insisted that the facts alleged do not establish such a contract. We do not so understand the complaint. It proceeds upon the theory that the company undertook to run a special train at special rates, and that all who complied with the company's regulations were entitled to the benefit of such special rates, and that the appellee complied with such regulations as far as it was in his power to do, and paid the stated fare and more, and, while in the enjoyment of a privilege he had so purchased and paid for, ...