Cincinnati, N. O. & T. P. Ry. Co. v. Tharp

• Decision Date: 30 June 1915
• Docket Number: 2639.
• Citation: 223 F. 615
• Parties: CINCINNATI, N.O. & T.P. RY. CO. v. THARP.
• Court: U.S. Court of Appeals — Sixth Circuit

223 F. 615

CINCINNATI, N.O. & T.P. RY. CO. v. THARP.

No. 2639.

United States Court of Appeals, Sixth Circuit.

June 30, 1915

R. M Jones, of Knoxville, Tenn., for plaintiff in error.

G. H West, of Chattanooga, Tenn., for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and SESSIONS District judge.

SESSIONS District Judge.

This action was brought in the circuit court of Rhea county Tenn., by the defendant in error (plaintiff) against plaintiff in error (defendant), to recover damages for injuries suffered by plaintiff while a passenger on one of defendant's trains between the stations of Spring City and Dayton, Tenn. The case was removed to the court below, where a trial resulted in verdict and judgment in plaintiff's favor. At the close of all the evidence counsel for the railway company moved the court to direct a verdict in its favor upon the alleged grounds: (1) That the negligence of defendant was not the proximate cause of the injury sustained by plaintiff; and (2) that plaintiff was guilty of contributory negligence. The only error assigned and urged is upon the denial of the motion for a directed verdict. No exception was taken to the charge to the jury, and it is not contained in the present record.

The testimony was very conflicting, but viewing it most favorably to plaintiff, and accepting his version of the affair as true, as we must upon this record, the material and essential facts may be thus stated: At the time of his injury, plaintiff was a boy between 14 and 15 years old, with a very limited knowledge of and experience in railroad travel. He then lived at Dayton, Tenn. On July 30, 1909, he accompanied a married sister from Dayton to Spring City upon a visit to another sister. Before leaving home in the morning, the boy's father gave him 80 cents. He had no other money. The regular fare between the two places, if a ticket was purchased, was 40 cents; but, if a ticket was not purchased, the cash fare on the train was 55 cents. A statute of Tennessee made it the duty of the railway company to keep its station office open for the sale of tickets at least one hour before and until the departure of each passenger train. In going to Spring City, plaintiff and his sister purchased tickets, paying 40 cents for each ticket. The trouble occurred on the return trip. Both before the arrival of the train and while it was standing at the station at Spring City, plaintiff and his sister at different times attempted to purchase tickets; but the agent was not in the office, and no tickets were or could be procured. Upon this particular train, one of defendant's auditors, and not the regular conductor, was collecting fares and tickets. The auditor first approached plaintiff's sister and asked for her fare. She handed him 40 cents and explained that she and her brother had been unable to procure tickets. The collector demanded extra fare, and, with some reluctance and hesitation, the sister paid 55 cents, which was all the money she had. When asked for his fare, plaintiff tendered the collector 40 cents, explained that he had no more money, and insisted that he ought not to be required to pay more than that amount. At first the collector refused to take the money offered him; but, after collecting fares from the other passengers upon the train, he came back and took the money, giving a receipt therefor, and telling the boy he must get off the train at Evansville-- a station about six miles north of Dayton-- or he would have to put him off. The auditor 'talked rough' and was quite abusive to plaintiff and his sister. After the train had passed Evansville, the auditor again came to plaintiff, censured him for not getting off as directed, told him he was nothing but a 'bum,' threatened to put or kick him off the train and finally said he would take him to Chattanooga and 'have him locked up' by the sheriff. He also threatened to tick the sister off the train if she interfered. The boy was crying and was very much frightened. At one time during the controversy he tried to raise the car window and jump out, but was prevented from so doing by his sister. As the train reached Dayton, plaintiff went to the rear of the coach, and seeing the auditor following him, stepped out upon the rear platform, and, just as the train began to slow down, and when it was about 250 yards from the station, jumped off and was severely injured.

Under the evidence so stated most favorably to the plaintiff, was the trial court right in submitting to the jury for its decision the questions of the proximate cause of plaintiff's injuries and his own negligence? The answer is not difficult. A companion case to this one was brought by the father of this plaintiff against this...