Boggess v. Chesapeake
| Decision Date | 10 December 1892 |
| Court | West Virginia Supreme Court |
| Parties | Boggess v. Chesapeake & O. R'y Co. |
A person having a ticket for passage upon a railroad, who boards a frieght train which does not carry passengers, believing the ticket good on that train, is to be treated as a passenger and is not a trespasser.
The conductor orders such person to get off the train while running at a speed which would endanger him in getting off, the conductor refusing to stop the train to allow him to get off, and in violent and insulting language threatens to eject the person from the train by force if such order is not obeyed, and has force at his command to execute such threat, and the person jumps from the train to avoid ejection by force. This is sufficient compulsion or show of force to excuse the person from the charge of contributory negligence in so jumping from the train.
A. Burlew and 0. Johnson for plaintiff in error.
I. Defendant liable, if injury could have been prevented by ordinary care on its part, notwithstanding negligence of plaintiff. -95 U. S. 439; 69 N Y. 158; 29 Md. 420; 65 Pa. 269; 1Q.B. 29; 17 Mo. 537; 48 Mo. 380; 47 Mo. 521; 50 Mo. 461; 65 Mo. 22; 64 Mo. 430; 62 Miss. 683; 46 111. 75; 2 Ro. R'ds 1054, 1040.
II. A person taking passage on wrong train can not be expelled as trespasser. 26 Am. & Eng. R'y Cas. 489. III. Commission of trespass does not justify reckless infliction of injury as punishment or for revenge. Pat. R'y Abo. Law § 198; 4 Am & Eng. R'y Gas. 527; 92 Ind. 601; 9 Am. & Eng. R'y Cas. 412; 22 Am. & Eng. R'y Cas. 360; 28 Am. & Eng. R'y Cas. 455; 8 Am. & Eng. R'y Cas. 347; 34 Am. & Eng. R'y Cas. 281; 26 Am. & Eng. R'y Cas. 489; 55 Ind. 502; 37 Cal. 400.
J. E. Chilton for defendant in error.
I. The company had. the right to refuse to carry passengers on
Us freight train. -99 Ark. 857; Hutch. Carr. 538, note 2.
II. It is negligence to attempt to get off a moving train. 112
Mass. 38; 3 Rob. (N. Y.) 25; 37 Cal. 406; 4 Am. & Eng. R'y Cas. 533.
Br ann on, J udge:
John G. Boggess brought an action of trespass on the case in the Circuit Court of Kanawha county against the Chesapeake & Ohio Railway Company. A demurrer to the declaration was sustained, and judgment rendered for the defendant, and the case was brought here by the plaintiff.
The declaration alleges that the plaintiff purchased of the defendant a ticket for his passage upon its railroad from Brownstown to Charleston, and got upon a freight train to go to Charleston, and that he believed that the ticket entitled hi into ride upon said train, and that while the train was running at a speed which made it extremely dangerous for one to get oft it, the conductor "ordered and directed the plaintiff io leave said train, and refused to stop said train io enable said plaintiff to do so without injury, and there and then, in violent and insulting language, threatened to put said plaintiff off said train by fore if he declined to obey said order; and believing that said agent, with such force as he could command, would be able to and would eject the plaintiff from said train by force if he undertook to resist him, and believing, also, that an attempt to resist said agent would result in more serious injury to the plaintiff than he would be likely to receive by attempting to get off said train without collision with said agent, and to avoid being forcibly ejected from said train, be undertook to get off said train, and in doing so used every care and precaution possible, but said train was running at such a rapid rate that in jumping from it he was injured," etc.
We can not regard ihe plaintiff a trespasser, if that be material; for even a trespasser on a train most be ejected at a proper time and in a proper manner. Having a ticket, and getting aboard a wrong train, believing his ticket would entitle him to ride upon it, be is not a trespasser, but a passenger. There is no question that a railroad company may make reasonable rules and regulations for the conduct of its business, nor that it has a right to appropriate certain of its trains for freight exclusively, and others for passengers, and to refuse to carry passengers on freight trains; but when a person with a ticket giving no notice of such rule is on a freight train, believing be has a right to ride on it, he is a passenger, and entitled to a passenger's rights while on it. 2 Ror. R. R. 984; 2 Wood, R'y. Law, 1047.
We do not question the right of a conductor of a freight train, which, by the rule of the company, is forbidden to carry passengers, to require a passenger to leave it, and even forcibly eject him, if necessary, in a manner such as is required by law; but it must be in that manner.
In this case the declaration states that the train was running at a speed rendering it extremely dangerous to get off it, and that the conductor refused to stop it to enable the plaintiff to get off it, and that the conductor nevertheless required the plaintiff, under such circumstances of imminent danger, to leave the train. Certainly, we are compelled to say in this the conductor was in the wrong. If determined that the plaintiff must leave the train at once, he should have stopped it for the purpose, or if that was inconvenient, or he did not choose to do so, he must allow the passenger to remain on the train until his next stopping place is reached, and not compel him, at the risk of his life, to jump from the rapidly-moving train. It needs no authority, though it is abundant, to show that neiiher a passenger nor a trespasser can be expelled from a train under circumstances imperiling his life or limb. Thus the company is in the wrong.
But it is said that while this may be true, and while, if the plaintiff had been ejected from the train by force, or a demonstration of force equivalent thereto, the company might be liable, yet the declaration does not show this to be the case, and that the plaintiff, without actual compulsion, though capable of seeing and judging the danger of the act, voluntarily risked that danger, and jumped from the running train, instead of acting prudently and standing his ground until ejected by actual force, and therefore he is guilty of contributory negligence preventing recovery in this case.
Here, in fact, is the crucial point in the case. Now, first, it may with force be said that it lies not in the company's mouth to say, after giving a command to the plaintiff to leave the train, that he ought...
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