Boster v. Ches. & Ohio R'y Co.

• Decision Date: 26 March 1892
• Citation: 36 W.Va. 318
• Court: West Virginia Supreme Court
• Parties: Boster v. Ches. & Ohio R'y Co.

36 W.Va. 318

Boster

v.Ches. & Ohio R'y Co.

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1892.

Decided March 26, 1892.

Rai iiKOAD Companies Ejection of Passenger DamagesRules.

Boster, the plaintiff, was accepted as a passenger by the railway company at a station on the road where no tickets were sold. On the train the conductor collected his fare fifty cents to Milton, the station, to which plaintiff wished to go. After passing Barboursville station the conductor again demanded of Boster his fare thirty cents from Barboursville to Milton. Boster claimed that he had paid the fare fifty cents to Milton. The conductor said he had not, but had paid twenty cents, the fare to Barboursville; to which B. replied: "I won't argue the question with you. You ought to know your business." Then the conductor jerked the cord, and stopped the train. Then B., who had the money, said, "I will pay again, rather than be put off;" and offered to pay, making no tender; but the conductor caught him in the back, and said: "I don't want you on here. You will have to get off'." B. got off (no force or violence was used; it was at no station) and walked nine miles up the track to Milton. In an action of trespass on the case in tort the jury found a verdict of five hundred dollars damages. Held:

I. The action of trespass on the case in tort was proper.

II. The damages are not so excessive as to warrant the belief that the jury must have been influenced by partiality, prejudice, or passion, or must have been misled by some mistaken view of the merits of the case.

III. Carriers may adopt such rules for the regulation of their business as may seem tit and proper, and they must be observed by the passenger, except so far as they may be opposed to law or be in themselves unreasonable.

Simms $ Ensiow for plaintiff in error cited 34 W. Ya. 65; 29 O. St. 126; Woods R'y Law § 364; 20 Up. Can. Q. B. 27; Id. 24; 11 Lea 98; 45 la. 69; 50 la. 79; 45 Mich 184.

E. M. McCallister and Gibson $ Michie for defendant in error cited 34 W. Va. 73; 33 W. Va. 423.

Holt, Judge:

This is an action of trespass on the case, brought on the 27th day of June, 1889, in the Circuit Court of Cabell county, by plaintiff, Boster, against the railway company, charging it with having unlawfully ejected him from its train. There was a demurrer by defendant; overruled; plea of not guilty; trial by jury; a verdict for five hundred dollars; motion by defendant to set the same aside; motion overruled, and judgment given. On exceptions taken by defendant it has obtained this appeal.

The relation between the passenger and the common carrier is now generally treated as one of contract express or implied. But the contract is peculiar. The law creates and imposes on the common carrier the duty to carry the passenger safely and treat him properly; and by the wefght of authority as well as by the behest of a sound public policy such carrier can not by any contract whatever relieve himself from the obligation of observing ordinary care. See Cooley, Torts, (2d Ed.) p. 825, and cases cited.

Although the carrier is not an insurer, ordinary care in transporting passengers by railway is a very high degree of care, where there must be no want of caution, foresight or judgment to prevent the injury. Not only is the contract thus restricted as to what the carrier must do and what things he must not do, hut he must make the contract. He can not refuse to make it. It is not left to his will or choice to receive and convey the passenger. His services of safe transportation are at the command of all veil-behaved people who pay or tender the fare. So that, if it is to be called a contract throughout, it is certainly mi generis.

But, no matter whether we call it a duty created by law or a duty created by contract or by both, it is long and well settled, where common-law pleadings prevail, that the breach of such duty may be treated as a breach of contract and declared on in assumpsit, or may be treated as a tort and declared on in case, according as the pleader may see fit; because the liability is founded on the common-law as well as upon contract, or, rather, because the law casts upon i he common carrier an obligation without regard to the contract, creating the implied contract and controlling the special one. 1 Chit. PL p. 151 (16th Amer. Ed.); Goddard v. Railway Co., 57 Me. 202; Bish. Non-Cont. Law, § 74, and cases cited.

This case before us is plainly an action in case, in which the alleged breach of the carrier's common-law duty to properly treat the passenger and safely carry him to 1 is destination is declared on as a tort. I can not discover that anything has been omitted from the declaration so essential to the action, that judgment according to law and the very right of the case could not be given; therefore the demurrer was properly overruled. Code c. 125, s. 29.

It avers that defendant is a corporation existing and doing business under the laws of and in this State, as a commoncarrier of passengers by steam railway, etc.; that on the_

day of March, 1890, at the C. & O. shops, a station of the railway, plaintiff was received by defendant as a passenger on its train to be safely carried from said station to Milton, another station of defendant's railway; that plaintiff paid to defendant his fare from the one station to the other; that thereupon it became the duty of defendant to safely and securely carry and convey plaintiff from the said C. & O. shops to the said Milton; yet defendant, not regarding its duty in that behalf, did not and would not safely carry plaintiff from C. & 0. shops to Milton, but wrongfully, willfully, negligently and injuriously neglected and refused so to do, but on the day, etc., at Cabell county wrongfully, willfully, negligently, injuriously, unlawfully and without just cause forcibly and violently ejected and expelled plaintiff' from its train, one mile east of Barboursville, a station on defendant's railway between the two stations aforesaid, whereby plaintiff was compelled to walk a distance of nine miles to said Milton, and suffered great pain, and was in consequence afflicted with a severe case of piles, and was sick, sore and disabled for a long space of time, to wit, hitherto; whereby and by reason of the wrongs, injuries and grievances before mentioned plaintiff sustained damages to the amount of ten thousand dollars, and therefore he brings suit, etc.

During the progress of the trial plaintiff asked for no instructions; defendant asked for four, No. 1 and No. 2 were refused, and it excepted. No. 3 and No. 4 were given, and plaintiff excepted.

Defendant's instruction No. 1 (refused.)

"If the jury believe from the evidence that the plaintiff got off the train without any force or violence from the employe they should find for the defendant.'"

Defendant's instruction No. 2 (refused.)

"The court instructs that, if the jury finds from the evidence that the plaintiff paid his fare to defendant's conductor from the Huntington shops to Milton, and afterwards the defendant's conductor, on the same train, again demanded fare from Barboursville to Milton, and the plaintiff refused to pay fare again, and the conductor stopped the train, and told the plaintiff to get off, and without any force or violence the plaintiff got off himself, he can not recover in this case. It was his duty to pay the extra fare demanded, and then sue the company for a breach of its original contract."

Defendant's instruction No. 3 (given:)

"The court instructs the jury that, where a passenger has refused to pay his fare or show a ticket to the agent of a con moo carrier when demanded, and the agent of the common carrier stops the train, and the passenger waits until the train is stopped before he offers to pay, it is too late to offer after the train has stopped, and the conductor has the right, after the train has stopped, to refuse to let the passenger remain on the train, although he may, after it is stopped, offer to pay the fare demanded."

Defendant's instruction No. 4 (given:)

"The court instructs the jury that, if they find from the evidence that the plaintiff had paid his fare from the shops to Milton, and that then the defendant refused to carry him, and required him to get off the train, and that he did get off without any violence or force being used, then the only damages the plaintiff can recover is that growing immediately out of the breach of the contract. Damages for sickness caused by bodily causes existing at the time are too remote and can not be considered."

The evidence in full is certified and set out. This is now reqiired by act passed 12th March, 1891, taking effect at the expiration of ninety days after its passage. See Acts 1891, p. 304. But this trial was had before the act took effect, I do not mean however to imply that the act would affect the case.

The only serious conflict in the testimony is as to the amount of fare paid, plaintiff proving by his own testimony and that of his nephew, who was present as a passenger on the train, that plaintiff, when called on for his fare by the conductor, handed him a silver dollar, telling him that he got on at the C. & O. shops station and was goi: ig to Milton; that the conductor handed back in change twe twenty five cent pieces, retaining fifty cents, conceded to be the proper fare to Milton. The conductor on the contrary states with equal positiveness that plaintiff handed him twe ten cent pieces, the proper fare to Barboursville. The conductor is supporteei by the evidence of another passenger, who says plaintiff paid but twenty cents, and he heard pla ntiff say to some one he was going to Milton on that fare. Plaintiff did not contradict saying this, though afterwards examined.

Whatever the truth may really be in this conflict of tes- timony it is not our province to determine; but we must take the fact to be, for the present purpose, as the jury have found it; for it was theirs to determine...