Adams v. Chicago Great Western Railroad Co.

• Citation: 135 N.W. 21,156 Iowa 31
• Parties: JOHN ADAMS, v. CHICAGO GREAT WESTERN RAILROAD COMPANY and J. C. EVANS, Appellants
• Decision Date: 15 March 1912
• Court: United States State Supreme Court of Iowa

135 N.W. 21

156 Iowa 31

JOHN ADAMS, v. CHICAGO GREAT WESTERN RAILROAD COMPANY and J. C. EVANS, Appellants

Supreme Court of Iowa, Des Moines

March 15, 1912

Appeal from Wright District Court.--HON. R. M. WRIGHT, Judge.

ACTION for damages resulted in judgment against both defendants from which they appeal.

Reversed.

Carr Carr & Evans and Birdsall & Birdsall for appellants.

J. W Henneberry and McGrath & Archerd for appellee.

OPINION

LADD, J.

In the afternoon of December 7, 1909, plaintiff was discovered lying on the floor in a box car in a train which had just reached Lehigh over a branch line of the defendant from Ft. Dodge to that place. The attention of the train crew being directed to him, he was assisted to the depot platform. Though he testified to having boarded a passenger car at Ft. Dodge, the conductor and brakeman denied having seen him there, and he offered no explanation of his exit from a passenger car to the box car in which he was found on the way. He remained at the depot in Lehigh until the train was ready to return to Ft. Dodge, nearly two hours, and then boarded the passenger car. Upon demand for fare, he tendered a ticket from Ft. Dodge to Eagle Grove, which was declined, and though requested twice thereafter, failed and refused to pay the same, and was directed to leave the train at Evanston, the next station. This was about five o'clock p. m. of the same day. He did as required, and after standing on the platform a few minutes, entered the depot. After the agent, defendant Evans, had completed his work, about thirty minutes later, and was ready to go to his evening meal, plaintiff was required to leave the depot so that it could be locked and started on foot toward Ft. Dodge, about eight miles distant. After walking along the railroad track for some distance, he appears to have entered a corncrib, and to have slept there until about five o'clock the next morning. At that time he called at a house in Evanston where it was discovered that both his feet were frozen, and also two fingers of his right hand. Both feet and one finger subsequently were amputated. Two grounds of negligence are charged: (1) In ejecting plaintiff from the train at Evanston, knowing that he was intoxicated to such an extent as to be unable to care for himself, and that the weather was cold; and (2) in ejecting plaintiff from the depot and premises of the railway company at Evanston, knowing him to be in the condition stated, and unable to take care of himself, in the cold, and that there was no hotel or other place where he could obtain shelter from the inclemency of the weather.

I. That the plaintiff was in a state of intoxication when required to leave the passenger car at Evanston is undisputed. Section 2 of chapter 141 of the Acts of the Thirty-Third General Assembly provides that "any conductor of a railway train or street car carrying passengers shall have the right to refuse to permit any person, not in the custody of an officer, to enter any passenger car on his train or street car in his charge, who shall be in a state of intoxication; and shall have the further right to eject from his train at any station or from his street car at any regular stop any person found in a state of intoxication or drinking intoxicating liquors as a beverage, or using profane and indecent language on any passenger car of his train or any street car under his charge and for that purpose may call to his aid any employee of the railway or street car company." This conferred on the conductor ample authority to expel plaintiff from the train. He might have excluded him from the car when he undertook to enter it at Lehigh, had he elected to have done so, but the circumstance that plaintiff succeeding in getting aboard through the oversight of members of the train crew or for any other reason did not deprive the conductor of the right expressly conferred by this statute to eject him therefrom. Nor is a conductor in ejecting such passenger bound to select any particular station at which to do so. The statute in the plainest possible terms authorizes this to be done "at any station." Of course, this will not justify the use of excessive force in accomplishing what may be done, nor does such a statute afford any protection against the willful or wanton conduct of a conductor in ejecting a person even at a station. The condition of an intoxicated person doubtless might be such that to leave him to find his way even to the nearest house or the station would imperil his life or limb, and in that event the conductor would not be excusable in knowingly exposing him to such danger. Roseman v. Railway, 112 N.C. 709 (16 S.E. 766, 19 L. R. A. 327, 34 Am. St. Rep. 524). But this is not such a case. The plaintiff in leaving the car walked erect and reached the station, which was open, safely, and, though there was no hotel in the place, there were ten or twelve dwelling houses not far from the depot, and, in the absence of all proof, it is not to be assumed, nor was the conductor bound to assume, that a person even in plaintiff's condition then could not have found shelter from the inclemency of the weather at the station, or in some of these dwellings. If the conductor was then aware that plaintiff was in a helpless condition, the record does not disclose the fact. A passenger testified that he sat straight in the seat and walked erect in leaving the car, but that she thought him kind of stupid, and that he did not seem to know what he was doing, for that, when the conductor refused the ticket from Ft. Dodge to Eagle Grove, he fumbled in trying to get his hand into his pocket. Undoubtedly this conduct was an indication of intoxication, but it alone should not be accepted as establishing helplessness.

Common carriers are required to exercise a very high degree of care in the protection of travelers being transported against the misconduct of drunken and disorderly persons, and the manifest design of this statute is to enable them to guard against the dangers incident to their conveyance by authorizing them to refuse such persons as passengers or after becoming such to expel them from their passenger coaches.

The plaintiff not only was intoxicated, but had refused to pay his fare. The defendant did not owe him the duty of carrying him gratuitously, and might ordinarily eject him at the first station reached. The record is without evidence from which it could rightly have been found that the conductor in doing so violated any duty owing plaintiff, and the first ground of negligence ought not to have been submitted to the jury.

II. The plaintiff in declining to pay his fare had ceased to be a passenger, and, when ejected, can not be assumed to have entered the depot for the purpose of taking a train. Even if he did, however, the agent was not bound to keep it open until the next train passed through on the following day. The waiting room is for the accommodation of incoming and outgoing passengers, and not a place of resort for the general public, and though one entering it not as a passenger or on business with the company is not to be regarded as a trespasser, yet, upon a request to leave, it is his duty to do so, whether disorderly or not, and upon his refusal to go it is the right of the agent to eject him, using such force as is reasonably necessary. Johnson v. Railway, 51 Iowa 25; Beeson v. Railway, 62 Iowa 173; McDonald v. Railway, 88 Iowa 345 at 348.

As the plaintiff was not there on business connected with the company, the agent owed him no affirmative duty. In the absence of information to the contrary, he might assume that plaintiff was capable of taking care of himself, and was not bound before ordering him out of the depot on closing to ascertain his actual condition. If, however, the apparent condition of plaintiff was that of helplessness or of intoxication, such as to render him incapable of caring for himself, in view of the inclemency of the weather, and he was in such condition actually, then it devolved upon the agent to exercise such care, and take such precautions for his safety as an ordinarily prudent person would under like...