Denver Tramway Co. v. Cloud

• Decision Date: 10 June 1895
• Citation: 40 P. 779,6 Colo.App. 445
• Parties: DENVER TRAMWAY CO. v. CLOUD.
• Court: Colorado Court of Appeals

40 P. 779

6 Colo.App. 445

DENVER TRAMWAY CO. v. CLOUD.

Court of Appeals of Colorado

June 10, 1895

Appeal from district court, Arapahoe county.

Action by Henry J. Cloud against the Denver Tramway Company for damages for the wrongful ejectment of plaintiff from one of defendant's cars. Judgment was rendered for plaintiff and defendant appeals. Reversed.

A.M. Stevenson, for appellant.

R.H Gilmore, for appellee.

BISSELL J.

Henry J. Cloud was a passenger on the surface lines of the tramway company in February, 1892. He was ejected from the car. His loss was not great, and he was personally uninjured in the controversy, but nevertheless he has the right to maintain the suit if his rights have been infringed by the wrongful conduct of the company's servants. Cloud originally took passage on what is known as the Agate Avenue Electric Line which connects at the loop with a line belonging to the same company, which runs on Fifteenth street and Colfax avenue. At this time it was a cable line, and the passengers from one to the other were given a continuous ride or passage on the payment of one fare and the procurement of a transfer check. Cloud reached the loop at about 9 in the morning. He had paid his fare on the Agate avenue branch, and received from the conductor a transfer check, purporting to give him the right to continue his journey on the cable line to its end. The check was in the ordinary form used by the tramway company was punched for the month of February, and as of its 1st day, and of the hour of 9, whereby Cloud secured the right to continue his journey betwen the hours of 9 and 10 from the loop onward. When he entered the cable car, he presented his transfer check, but the conductor refused to receive it The reason is not very clear. The conductor was not produced, and the company offered no evidence by way of explanation or against plaintiff's case. According to the plaintiff's story, the conductor said the transfer was regular, so far as concerned its date and its hour and the time of presentation, but he insisted there had been a change in the form of the transfers issued by the company on that day, and, whether the Agate line conductor had or had not made a mistake, the transfer check gave Cloud no right to pursue his journey without the payment of a fare, which the conductor demanded. Cloud refused to pay it, insisted he had received the transfer from the conductor, and, if there was any mistake, it was the company's mistake, and not his; and he would neither submit to the inconvenience of recovering his fare from the company, nor would he offer any other thing in exchange for his ride than the transfer, whereupon the conductor said he must either pay or get off. Cloud refused to do either. The conductor called the gripman and the conductor of a passing car to his assistance, and ejected the passenger. There was no contest, conflict, or scuffle about it. Cloud simply refused to go, and the only resistance which he offered was the resistance of his inert weight. The employés of the company used no more force or exertion than was necessary to accomplish their object. Whereupon he brought this action.

The case calls for neither comment nor sympathy. The suit is simply one which has been brought by a passenger to recover for a wrongful act, and to compel the transportation company to observe and protect a passenger's rights from any infringement or abuse on the part of the employés. Many questions were raised on the motion to set aside the verdict which are preserved in the assignment of errors, but in the argument of counsel for the appellant none are presented save those which relate to the character of the action and to the instruction of the court on the subject of exemplary damages. This narrows the inquiry, and permits us to dispose of the appeal with a brief consideration of these two matters. The first proposition is based on the character of the complaint, and what is alleged to be the form of the suit. The pleader has stated the purchase of a ticket, and the payment of his fare, and then detailed the circumstances of his ride and ejection, concluding with a prayer for damages. Appellant's counsel insist that this, of necessity, makes the case an action for breach of contract, which will only entitle the plaintiff to recover whatever pecuniary loss he may be able to prove. The theory is coincident with the common-law rule which permitted the injured party in a case of this description to declare in either case or assumpsit. The only way to determine the character of the action was to consider and analyze the declaration. If the declaration alleged a promise, a consideration, and a breach, the action would be taken to be in assumpsit, and the plaintiff held to have waived the tort. Smith v. Seward, 3 Pa.St. 342; Porter v. Hildebrand, 14 Pa. St. 129; Railway Co. v. Chappell, 21 Fla. 175. We do not agree with counsel as to the proper interpretation of the pleading, even though we were bound to follow the common-law rule. No promise was alleged. The only thing deducible in the nature of a promise is an implied one which the law raises against a railroad company when the passenger alleges a proper entry into the car, and the payment of his fare. This, however, is not the allegation of a specific promise, which,...