Choctaw, O. & G. R. Co. v. Hill
| Decision Date | 09 May 1903 |
| Citation | 75 S.W. 963,110 Tenn. 396 |
| Parties | CHOCTAW, O. & G. R. CO. v. HILL. |
| Court | Tennessee Supreme Court |
Appeal from Circuit Court, Shelby County; J. P. Young, Judge.
Action by John W. Hill against the Choctaw, Oklahoma & Gulf Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Wright Peters & Wright, for appellant.
Jno. E Bell, for appellee.
This action was brought in the court below by the defendant in error to recover damages for his wrongful ejection from one of the trains of the plaintiff in error. There was a verdict for $250, on which the court below entered judgment. A motion for new trial was made and overruled in that court, and thereupon the plaintiff in error prayed for and obtained an appeal to this court, and has assigned errors.
There was testimony introduced in the court below tending to show the following facts, viz.: That defendant in error was a newsboy on plaintiff in error's train, in the employ of the Van Noy News Company, but by contract between the latter and the railway company, likewise with the consent of defendant in error, he was subject to the orders of the railway company, and amenable to its rules and regulations just as any servant of the latter, and was to be transported back and forth without payment of fare. That on the 24th of August, 1902, while defendant in error was in this service on one of his accustomed trips, and while the train was standing at Oklahoma City, he was detected in the violation of a rule of the railway company, which, on pain of discharge from the service of the company, forbade its servants to drink beer or spirits, or to have the same in possession; the defendant in error having been seen drinking beer at a restaurant in Oklahoma City, and having purchased and carried upon his train a pint bottle of whisky for the conductor. That upon being so detected he was ordered by S. H. Barnes, the superintendent of that division of the road, to leave the train. That he threw the bottle of whisky out of the window of the car he was then in, and asked to be allowed to remain upon the train and proceed to Memphis, saying that he was willing to pay that fare. The superintendent denied this request, and upon his failure to go ordered the conductor to remove him from the train. That the conductor did so. That he in a very short time returned to the train, going through the ladies' car, and thence into the car in which he had previously been traveling, and in which his goods were consisting of newspapers, fruit, tobacco, and confections. That he took off his cap, but still kept on the rest of his uniform. That he was again ordered from the train, but in response said he wished to pay his fare, and go at least to the next station, Shawnee Town, so that he could have time to get his goods together, that they might not be lost. That he tendered at this time $5, but the conductor refused to receive the money. That the fare to Shawnee Town was only $1.25. That during the same conversation in which he tendered the $5 he also told the conductor he wished to go through to Memphis. That he knew that the fare to Memphis was more than $5. That upon the conductor's refusal to accept the fare he was again removed from the train, and in accomplishing this the plaintiff in error's employés jerked him from the car. That after he had been so removed he was held by the servants of the company, and forcibly restrained from again returning to the train, and was so restrained until the train resumed its journey. That Oklahoma City was one of the regular stopping places of the train. That the usual stop was 25 minutes, but on the occasion in question the train had been delayed an hour, awaiting the arrival of another train. There was evidence tending to show that the fare from Oklahoma City to Memphis was $15.12, and that defendant in error had in his pocket at the time he was ejected from the train the sum of $18. There is no testimony showing whether defendant in error knew the exact fare or not; nor is there any evidence showing that the conductor informed defendant in error of the amount, or that he demanded it, and from the attending circumstances we infer that he did neither. The defendant in error stayed in Oklahoma City until the next day at 10 o'clock, when he boarded a train of the plaintiff in error, and proceeded to Memphis, paying his fare as a passenger. By reason of his ejection from the train, defendant in error's goods, left upon the train, were wasted or lost, to the value of about $12, for which he was compelled to account to the Van Noy News Company.
Upon these facts it is insisted, first, that, inasmuch as defendant in error was clearly in the wrong, in that he had violated a rule of the company for which the company had the right to discharge him from the service, and (as plaintiff in error insists) eject him from the trains, and for which he was so discharged and ejected, he had no right to again board the train, and then to attempt to acquire and maintain the status of a passenger by offering to pay fare. Counsel endeavor to support this contention by reference to those cases which hold that when a person upon a train, claiming the rights of a passenger, has forfeited or failed to perfect these rights by a refusal to pay fare, and the train has been stopped, and the train crew are in the act of putting him off the train, such person cannot restore his original status and acquire and perfect his rights as a passenger, by then offering to pay the legal fare. Railroad v. Harris, 9 Lea, 180, 186, 187, 42 Am. Rep. 668; Hibbard v. N.Y. & E. R. Co., 15 N.Y. 455; State v. Campbell, 32 N. J. Law, 309; Hutchinson on Carriers, § 591. The reason assigned in support of the rule is that, if one passenger might, by his unjustifiable conduct, delay the train to put him off, another might do the same thing, and thus the utmost irregularity in the running of the trains be produced, jeopardizing the safety of the company's property, and the lives of all on board. 9 Lea, 186. But the reason of the rule would not exist, and hence the rule itself would not obtain, when the train is stopped at a regular station, as is shown in the present case. Toledo, W. & W. R. Co. v. Wright, 68 Ind. 586, 34 Am. Rep. 277. Moreover, cases of the class referred to do not furnish a fair analogy for the case we have before us. While it is true that the company had the right to discharge the defendant in error because of his violation of the rules, and, upon his failure to pay fare, also to eject him from the train, it did not have the right to eject him if he was willing and offered to pay fare to any station ahead. One reason given in many of the cases for the right of ejection even though one offers to pay fare after the ejection is begun is that the...
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