Atchison

• Decision Date: 10 December 1892
• Citation: 50 Kan. 40,31 P. 698
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. WILLIAM HOGUE

31 P. 698

50 Kan. 40

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. WILLIAM HOGUE

Supreme Court of Kansas

December 10, 1892

Error from Lyon District Court.

ACTION by Hogue against the Railroad Company, to recover damages for expulsion from defendant's train. Judgment for plaintiff. The defendant company comes to this court. The opinion states the facts.

Judgment modified and affirmed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error:

1. The plaintiff is not entitled to recover, because the ticket office was open for the sale of tickets for at least 30 minutes prior to the departure of the train, although the agent was temporarily absent therefrom attending to his duties, since sufficient facilities were afforded at such a small station to reasonably accommodate the public; and also because the plaintiff did not take passage from Walnut station, and no unnecessary force was used in putting him off the train.

The act which justified the charge of the 10 cents excess demanded by the conductor is chapter 139 of the Laws of 1886. What is meant by requiring the railroad company to keep its ticket office open for the sale of tickets at least 30 minutes immediately prior to the starting of the train? The word "immediately," used in § 1 of said act, does not mean the instant beore, but a reasonable time before under all the circumstances. See Am. & Eng. Encye. of Law, pp. 931-935, note 2. The 30 minutes were intended to precede the departure of the train and not an hour or so prior to the departure. It was fixed as prior to the departure of the train, and the word "immediately" was used in order that those desiring to take passage would know the time within which they might apply for the purchase of a ticket. But the fact that some time during the 30 minutes the agent might be temporarily out of the ticket office and about the station attending to some necessary duty for the accommodation of the public would not take the case out of the spirit of the act. It would be manifestly inconvenient and unreasonable to so construe the law as to maintain that because the agent should temporarily leave his office at any time during the 30 minutes, although for a necessary and laudable purpose, the act was not complied with, o@ the ticket office not open for the sale of tickets. See Suth. Stat. Constr., § 322; Everett v. (5'. R I. & P. Rld. Co., 69 Iowa 15; Comp. Laws of 1885, ch. 23, § 55.

Under the decision of A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608, there can be no recovery by the plaintiff upon the ground that excessive force was used. From the undisputed evidence, therefore, the plaintiff was 'not entitled to recover, and the verdict was not sustained by sufficient evidence.

2. Certain of the special findings of the jury are evasive and false.

3. The verdict .is excessive. The plaintiff designedly' brought upon himself all the injury which he suffered, and it is well said by the Ohio court that "to the willing mind there is no injury." See C. H. & D. Rld. Co. v. Cole, 29 Ohio St. 134.

There being no insult offered to the plaintiff, there could be no recovery for alleged indignities. See Payne v. C. R. I. & P. Rld. Co., 45 Iowa 573; Fitzgerald v. C. R. iT. & P. Rld. Co., 50 id. 79; see, also, Tomlinson v. W. & S.C. Rld. Co., 47 Am. & Eng. Rld. Cas. 620; 2 Wood, Rly. Law, 1238; 'Wood, Mayne, Dam. (1st Am. ed.) 14, note; L. S. & M. S. Rld. Co. v. Pearce, 47 Mich. 277.

John A. Murray, for defendant in error:

1. The plaintiff had first taken passage from Girard to Walnut; for that distance he had a ticket; when he reached Walnut, the contract of carriage between him and the company had been completed. He got off the train at Walnut for the purpose of procuring a ticket and thus entering into a new contract for passage to Erie. From this state of facts, how can the plaintiff in error maintain that the question as to excess is any different than if the plaintiff had first taken passage from Walnut, or if he had stopped over at Walnut for the space of one day?

The question as to Walnut being a small and insignificant station, and the business of the station not justifying the company to keep more than one agent, cuts no figure in this case.

If words are to be construed "according to the context and approved usage of language," as provided by our statute, then the word "immediately" could receive no such construction as counsel maintain. Webster has defined the word "immediate," in relation to time, "not deferred by an interval of time ;" "acting directly;" "immediately--without delay or intervention of anything;" hence, in this case, the intervention of an amply sufficient period from the time when the agent left the ticket office until the time of the departure of the train in which the plaintiff could have procured a ticket precludes the theory adopted by plaintiff in error.

2. A careful perusal of the evidence will exhibit the fact that the jury answered the special questions submitted as best they could, and in fact very candidly and to the point.'

In the case of Everett v. C. l:l. I. & P. Rid. Co., 69 Iowa 15, the rule of the law construed was altogether different.

In the case of Payne v. C. R. I. & P. Rid. Co., 45 Iowa 576, cited by the counsel, "the conductor was conscientiously endeavoring to carry out a wholesome rule of the company." In Fitzgerald v. Railroad Co., 50 Iowa 79, the conductor was "enforcing a valid rule." How different this from the case at bar, where the conductor was willfully and intentionally attempting to enforce a rule of the company in direct violation of the statute.

The case in controversy, it seems to us, is a parallel with the case of S. K. Rly. Co. v. Rice, 39 Kan. 398. Resistance would not augment iris right to recover; neither would it preclude a recovery. If the plaintiff was not a trespasser upon the train, but was there rightfully, the force used was in any event inexcusable, and the fact that he held on to the seats would not be a justification. A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 614, et seq.

GREEN C. VALENTINE and JOHNSTON, JJ., concurring. HORTON, C. J.

OPINION

GREEN, C.:

William Hogue took passage at Girard on a train operated by the Atchison, Topeka & Santa Fe Railroad Company to go to Walnut. Before reaching the latter place he concluded to go to Erie, 10 miles farther. When the train arrived at Walnut, he got off and went to the ticket office to procure a ticket. The agent was not in the office, but was handling baggage on the platform. Hogue stood at the window of the ticket office until the conductor shouted "All aboard," when he got on the train. According to his own evidence, he went to the ticket office to obtain a ticket to Erie, but finding no agent within he boarded the train without procuring one. After the train had left Walnut, the conductor passed through the train and demanded a ticket, and the passenger handed him 30 cents. The conductor inquired where he was going, and he replied that he was going to Erie. The conductor demanded 10 cents more, and Hogue inquired why he wanted more than the regular fare of 3 cents a mile. The conductor answered because he had not purchased a ticket. Hogue replied that when the train reached Walnut he got off to buy a ticket and the agent was not in; that he waited for him and he did not come; that he could not secure a ticket, and expressed the opinion that the concluctor snoula not charge him the excess. The passenger declined to pay the excess, and the conductor notified him that he would have to put him off. The train was stopped, and the conductor asked the passenger what he proposed to do, and he answered, "I am here; if you want to put me off, you will have to put me off, for I will not get off." The conductor took hold of the passenger and the latter took hold of the side of the seat and held on. The conductor called the brakeman to his assistance, who picked the passenger up and carried him out on the platform and pushed him off. The passenger grabbed the conductor and they both left the train together and rolled down the bank. The money tendered was found by the brakeman on the car seat and was put in the valise of the plaintiff. The passenger's baggage was taken off of the train, and he walked back to the depot at Walnut. This was an action brought to recover damages for such expulsion. The jury returned a verdict for $ 400 damages, $ 10 of which they assessed as actual damages, and $ 390 they allowed for indignities suffered. The railroad company brings the case here upon three assignments of error.

The first contention of the railroad company is, that the plaintiff was not entitled to recover, because the ticket office was open for the sale of tickets for at least 30 minutes prior to the departure of the train. Although the agent was temporarily absent therefrom attending to his duties, sufficient facilities were afforded at such a small station as to reasonably accommodate the public. It is urged that it would be unreasonable to require of a railroad company that its agents should remain every minute of the 30 minutes prior to the departure of the train in the ticket office, when there was no reasonable expectation that at the last moment somebody would get off of the train for the purpose of buying a ticket to continue his journey. The reading...