Clark v. Wilmington & Weldon R.R. Co..

• Decision Date: 31 October 1884
• Citation: 49 Am.Rep. 647,91 N.C. 506
• Court: North Carolina Supreme Court
• Parties: GAVIN H. CLARK v. WILMINGTON & WELDON RAILROAD COMPANY.

91 N.C. 506

49 Am.Rep. 647

GAVIN H. CLARK

v.WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

October Term, 1884.

OPINION TEXT STARTS HERE

CIVIL ACTION for damages tried at Spring Term, 1884, of HALIFAX Superior Court, before Avery, J.

The plaintiff sues to recover damages for ejection from defendant's passenger car.

On the 14th of June, 1883, the plaintiff got on the defendant's train at Whitaker's depot to be carried to Battleboro depot, about four miles distant. The fare between these stations was twenty-five cents, and when about half way between them, the plaintiff was ejected from the car by the conductor.

It was in evidence that before the train reached Whitaker's the plaintiff applied to one Powell for money to pay his fare, and Powell told him he would pay it on the train; and just before the train reached the depot he made a similar application to one Braswell who also was waiting to take the train, and Braswell also told him he would pay plaintiff's fare on the train. This evidence was objected to by defendant, but admitted by the court, and defendant excepted.

On boarding the train, Braswell took a seat in the rear car, the plaintiff in the one just ahead of it, and Powell in the same car with plaintiff or in the one ahead of it.

When the conductor came around to collect the fare, the plaintiff told him that he had neither ticket nor money with him, but that he would get the fare from a gentleman in the rear car, if he (the conductor) would allow him to do so. The conductor replied “you must get off--I have not time to wait for you, I have something else to do,” and immediately pulled the bell rope, stopped the train, and ejected the plaintiff, his train hands being present and able to enforce orders. There was no force used in the ejection except the order of the conductor (in the presence of his assistants) to leave the train.

When the conductor called on the plaintiff for his ticket or fare, he was on his way from the car where the plaintiff was to that where said Braswell was; and said Braswell was able, ready and willing to pay said fare. He did not know the plaintiff was ejected.

While the plaintiff was being ejected and on the lower steps of the car, said Powell offered to pay plaintiff's fare to the conductor, who declined to receive it.

The defendant asked the court to charge the jury as follows:

1st. “When the conductor demanded of the plaintiff his ticket, and he tendered neither ticket nor money, the conductor had the right to eject the plaintiff.”

2nd. “There is no evidence that the conductor prevented or forbade the plaintiff from going to Braswell.”

His Honor refused so to charge and the defendant excepted.

The only evidence on this point was that of the plaintiff himself, and of one William Stephens, introduced by the defendant. Plaintiff testified as follows:

Got on defendant's cars at Whitaker's, June 14th, 1883, but had no ticket. Conductor asked him for his ticket; told him he had none; conductor said “you must get off the train, then.” Plaintiff said “if you will allow me to go into the other car, I will get money to pay the fare;” conductor ordered him off the train; Isaac Powell then offered to pay the twenty-five cents, which was the fare; conductor refused to take it, and put him off the train; did not go to the other car because the conductor did not give him time; conductor was going to the rear of the train and plaintiff proposed to go to next car in rear.

On cross-examination he said he had been drinking but was not drunk-- was sick from effects of liquor--conductor did not put his hands on him--did not try to get to the other car, but could have gone in there if conductor had let him--did not go because brakeman could have put him off.

Twenty-five or thirty passengers got on at Whitaker's for Battleboro. Conductor said “you have to get off,” and plaintiff told him before he rang the bell that he could get the fare from a man in the other car, but did not go to other car because conductor said “you have to get off.”

William Stephens testified that he was and had been for five years a brakeman on said conductor's train; that conductor was going through and got to plaintiff and said, “give me your ticket,” and plaintiff said, “I have'nt got a ticket,” and conductor said, “give me your ticket or your fare or I'll put you off; make haste, I have'nt time to wait on you, I have something else to do;” and plaintiff said, “I have'nt got the money or a ticket either.” Then the conductor rang the bell, stopped the train, and helped the plaintiff off. Powell then said, “I will pay your fare,” and the conductor remarked, “you are too late, go and attend to your own business.” The train was moving off then, and the witness heard the plaintiff say something, but did not hear what.

The defendant asked the court to charge that plaintiff could not recover upon the testimony offered in his behalf (as set out above), but this was refused and defendant excepted.

The only other evidence for plaintiff was that of Braswell, who testified that plaintiff applied to him to pay his fare a few moments before the train came up, which he agreed to do, and would have done if he had been applied to for it, but no one called on him for it. The exception of defendant to this evidence was overruled. And upon cross-examination he stated that he did not think he was in same car with plaintiff, and did not see plaintiff put off the train; that plaintiff was not a “fussy man.”

His Honor, among other things, charged the jury, “that the conductor was not bound to go into the other car to get the fare from Braswell, but if Braswell bad money and was ready and willing to pay the fare of plaintiff, and plaintiff told him before he stopped the car and started to eject him, that a friend in the next car would pay his fare, then the conductor ought to have allowed plaintiff a reasonable time to get the fare.” Defendant excepted.

“If the conductor started at the car where plaintiff was, and was passing through the train to collect fare or tickets, it was reasonable to allow plaintiff to go to the next car in rear to procure the money to pay his fare; and if the plaintiff did notify the conductor that a friend in the next car in rear would pay his fare, and the conductor stopped the train without allowing him time to go to the next car, and then ordered the plaintiff to get off, having at the time power to enforce obedience to his commands, then the plaintiff is entitled to recover, and they should respond to the first issue-- yes.” Defendant excepted.

“If the plaintiff failed or refused to pay his fare when called upon by the conductor, and did not propose to get the money from another passenger, and there was no offer to pay the fare till the plaintiff was on the steps of the car and was being ejected, then the conductor was not bound to receive the fare at that time, and the jury would respond to the first issue--no.”

Verdict for the plaintiff; judgment; appeal by defendant.

Messrs. Mullen & Moore, for plaintiff .

Messrs. Day & Zollicoffer, for defendant .

SMITH, C. J.

The plaintiff, while at Whitaker's station, on the defendant's road, awaiting the arrival of the train, on which he intended to take passage for Battleboro, a station four miles distant, and being himself without money, made arrangements with two others, Isaac Powell and T. P. Braswell, who were also going on same train, in which each agreed to pay his fare of twenty-five cents, the charge between those points.

When the train came, all three, with twenty or more others, entered it, the plaintiff taking a seat in the forward coach, Braswell in that next behind, and Powell in that where the plaintiff was, or one next in front.

When the conductor was passing through the coaches, taking up the tickets and collecting fares, from front to rear of the train, he came to the plaintiff, who said he had neither ticket nor money, but would get the fare, if allowed to go to the coach behind, from a gentleman sitting there.

The conductor refused to do so, saying, “you must get off. I have not time to wait for you. I have something else to do.” The train was then about half way between the stations, moving at a rapid rate, when the conductor stopped the train and compelled the plaintiff to get out.

Braswell would have advanced the money and paid the fare upon application. As the plaintiff descended from the coach and was on the lowest step, Powell offered to pay the fare, but the conductor declined to receive it, saying, “you are too late, go and attend to your own business.”

In expelling the plaintiff there was no actual force employed against his person, but the order was given, and assistants were present to execute it, and the plaintiff submitted.

The action is to recover damages for this ejectment of the plaintiff, and the sole question raised by the appeal is, whether under the circumstances the conductor had a right to put the plaintiff off the train.

An instruction was requested for the defendant, in the charge given to the jury, in these words:

“When the conductor demanded of the plaintiff his ticket, and he tendered neither ticket nor money, the conductor had the right to eject the plaintiff.”

This was refused, and instead the jury were directed as follows:

“The conductor was not bound to go into the other car to get the fare from Braswell, but if Braswell had money and was ready and willing to pay the fare of the plaintiff, and plaintiff told him before he stopped the train and started to eject him that a friend in the next car would pay his fare, then the conductor ought to have allowed plaintiff a reasonable time to get the fare.”

The whole controversy is involved in these two instructions, the one refused and the other given.

There can be no question of the right of the officer, in charge of a train of passenger coaches, to remove any one who has entered and refused to pay his fare or produce his ticket, as evidence of its having...