Atchison

• Decision Date: 03 July 1890
• Citation: 24 P. 500,44 Kan. 394
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. J. C. DWELLE

24 P. 500

44 Kan. 394

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. J. C. DWELLE

Supreme Court of Kansas

July 3, 1890

Error from Marion District Court.

ACTION by J. C. Dwelle to recover damages from the Atchison, Topeka & Santa Fe Railroad Company for wrongfully and forcibly ejecting him from one of its passenger trains. The plaintiff alleges that on April 13, 1887, he went to the station of Cedar Grove for the purpose of taking passage on the next train of the defendant to the city of Florence; that when he arrived at the station there was no agent or person authorized to sell tickets at the station, and he was unable to procure a ticket for such passage; that he then went upon the train and tendered eighteen cents, which was the legal fare due from Cedar Grove to Florence; that the tender of eighteen cents was refused, and the collector of the company demanded ten cents in excess of the legal fare; that he thereupon tendered the sum of twenty-eight cents, but the servants of the company refused to accept the tender or to carry him upon the train, and forcibly and unlawfully ejected him from its cars midway between Cedar Grove and Florence whereby he was greatly delayed and injured; and he prayed damages in the sum of $ 25,000. The answer of the defendant was a general denial. At the March term, 1888, a trial was had with a jury, and, after hearing the testimony, the following instructions were given by the court to the jury:

INSTRUCTIONS.

"The defendant is a common carrier, and bound to carry on its passenger trains all persons who pay legal rates of fare, and who conform to all the reasonable rules of the company; and who do not deport themselves to the annoyance or danger of the passengers, or its own employes. Our statute declares --

"'That in every case where any passenger on any railroad shall fail or neglect to purchase a ticket for his or her journey prior to taking passage on the train of such railroad company, it shall be lawful for such railroad company to charge and collect from such passenger, in excess of the legal rate of fare, the sum of ten cents for each journey of fifteen miles or less; and the sum of fifteen cents for each journey of more than fifteen miles and not exceeding fifty miles, and the sum of twenty-five cents for each journey of fifty miles or more: Provided, That this shall not apply to any passenger taking passage on any railroad trains (from any station) at which such railroad company fails to keep tickets on sale, or at which such company shall neglect or fail to keep its ticket office open for the sale of tickets at least thirty minutes immediately prior to the starting of such train.' (Laws of 1886, ch. 139.)

"The right of a railroad company to discriminate in its rates of fare between those purchasing tickets and those who do not depends upon its compliance with the provisions of the statute in regard to keeping its ticket office open for the required length of time. By keeping the ticket office open is meant keeping an office reasonably convenient of access and exit, with an agent in the same or at hand, ready upon call to sell its tickets, long enough before the starting of its train to enable passengers to purchase tickets and safely board the train. Only upon compliance with these legal requirements does it obtain the right to charge the excess fare to a passenger who has not purchased a ticket; and of course in a case where it has no right to demand the excess fare, it has no right to expel a passenger who refuses to pay it when demanded. Hence if you believe from the evidence in this case that at the Cedar Grove station on the day the plaintiff got on the defendant's train, it did not keep its ticket office open in the manner and for the time hereinbefore stated, so that plaintiff was unable to purchase a ticket before entering the cars, the defendant's employes had no right to demand an excess of fare from him or to expel him for refusing to pay it. But on the other hand if you believe from the evidence that the defendant did so keep its ticket office open at such station, but the plaintiff did not purchase a ticket before entering the cars the employes of the defendant had a right to demand the excess fare, and had a right to expel plaintiff if he refused to pay the same, and the failure of the plaintiff to reach the railroad station in time to purchase a ticket before the train started, would not relieve him from the obligation to pay such excess fare.

"A person entering a railroad car should promptly on demand produce and deliver to the proper employe a ticket for his passage, or if he has no ticket, and has no legal excuse for failure to provide himself with one, should promptly on demand tender in money the legal chargeable fare including excess, if any there be, and upon a refusal by him to do so if such refusal is with the intention and for the purpose of defrauding or unjustly withholding from the company its just dues, or unreasonably and wantonly vexing, delaying, annoying or putting to inconvenience the company's employes, he becomes a trespasser, and may be at once ejected from the train, unless prior to the time the company commences to exercise its right of ejection, as by commencing to stop its train for that purpose, or the seizure of his person by its servants, for the purpose of putting him off, he recants and offers to pay or deliver the ticket, in which case the company is bound to accept the same and allow him to ride; but if his refusal to pay or deliver a ticket is not done to defraud the company or to vexatiously annoy, delay, or inconvenience its employes, but is done with an honest belief as to his right to so refuse, and such motives for refusal are apparent from his temper, demeanor and conduct, and all the circumstances of the case, then the company is bound to accept the legal charges from him if tendered at any time before his expulsion, or even after the expulsion and before the starting up of the train. Hence if you believe from the evidence in this case that the plaintiff with intent to defraud the defendant and withhold from it its just dues, or for the purpose of vexatiously annoying, delaying and putting to inconvenience the company's employes, refused when demanded to pay the fare he knew or ought to have known was justly due, and persisted in such refusal until the company in the exercise of its right to expel him therefor, had taken the necessary steps to put him off, as by commencing to stop the train, or seizing his person if such seizure was necessary, such plaintiff was a trespasser by such acts and conduct, relieved the company of its obligation to carry him, and he could not reimpose such obligations on the company by making a tender of the sum due after having once refused it for the purpose and under the circumstances stated, and having put the company to the trouble of the performance of acts necessary to his safe and proper expulsion; but notwithstanding such refusal for such purpose and under such circumstances, if the plaintiff, prior to the taking of such steps by the company to expel him, tendered the proper amount to the proper employe, he was bound to accept it and permit the plaintiff to ride.

"But on the other hand, if you believe from the evidence in the case that the plaintiff refused to pay the amount demanded of him, but that such refusal was not for the purpose of defrauding the company or unjustly withholding its legal dues, or vexing, annoying, delaying or putting to inconvenience the company's employes, but was done in good faith under a mistaken belief that he was under no legal obligations to pay all that was demanded, and such honesty of purpose and belief was apparent from the manner, temper, demeanor and conduct of plaintiff, and the circumstances of the case, the company was bound to accept the sum previously refused, if tendered at any time before the actual expulsion, or after such expulsion and before the starting up of the train.

"In the expulsion of a passenger from a train no more force should be used than is necessary, and if any more is used by the company's employes than is necessary, the company is liable in damages from injuries resulting from such excessive force, if it is employed in the interest of the company and to effect the company's purpose in removing the passenger; but if an employe of the company after expelling such passenger makes the contest his own and commits an assault and battery after such expulsion, the company would not be liable. It is the duty of a person to avoid injury to himself as far as he reasonably can, and a person in a contest with another cannot, even though he be in the right for the purpose of increasing the damages to himself, or for the purpose of subjecting his antagonist to other or greater liabilities, invite such antagonist to exert force upon him, or hold out against him until he does exert such force, when he knows such force will be exerted and injuries inflicted, and when all his legal rights as to the subject-matter of the contention can be preserved to him by peaceably submitting. In other words, a person cannot, when it is not necessary to the maintenance of his legal rights, invite another to commit a wrong upon him, or knowing that such other will commit such wrong, and that he cannot prevent it or successfully resist it hold out until he does, and then claim damage for the wrong done. A person is entitled to as much damage for a wrong done or injury quietly endured as though he violently resisted, when he knows that such resistance will be unavailing. Hence, if you believe from the evidence in this case that the plaintiff, even though in the right in refusing to pay the sum demanded of him, yet nevertheless invited the defendant's...