Dillman v. Chicago, I.&L. Ry. Co.
| Decision Date | 23 June 1909 |
| Docket Number | No. 6,706.,6,706. |
| Citation | 88 N.E. 873 |
| Court | Indiana Appellate Court |
| Parties | DILLMAN v. CHICAGO, I. & L. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Monroe County; James B. Wilson, Judge.
Action by Franklin M. Dillman against the Chicago, Indianapolis & Louisville Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.Rufus H. East and Miers & Corr, for appellant. E. C. Field, H. R. Kurrie, T. J. Brooks, and J. E. Henley, for appellee.
Action by appellant for damages alleged to have been caused by the wrongful expulsion of appellant from appellee's passenger train. The amended complaint was in three paragraphs, to each of which demurrers were overruled. The case was submitted to a jury, and at the conclusion of the evidence appellee's motion for a peremptory instruction in its favor was sustained, and a verdict returned accordingly, upon which judgment was rendered. A motion for a new trial was filed and overruled.
The bill of exceptions herein is prepared under Acts 1903, p. 340, c. 193, § 5. It contains “a clear statement of the ruling *** called in question, together with a succinct recital of the substance of *** the evidence and proceedings” as to advise this court “of the pertinancy or materiality of the matters sought to be reviewed” and is therefore sufficient. It appears: That appellee operates a line of railway from Bloomington, Ind., to Louisville, Ky. That the line runs southward from Bloomington to Clear Creek, at which point it divides into two branches; one running southwest through Ketchman's, Henley's switch, switch No. 10, and switch No. 18, and the other running southeast through Sanders and Smithville, and both coming together at Harrodsburg. Appellant lived in Bloomington and was employed in a quarry. On October 4, 1904, he bought a ticket for $1.50, which reads as follows:
Not Good On Trains 3, 4, 5, 6, 9, or 10.
MONON ROUTE.
Chicago, Indianapolis & Louisville Railway. 2 Good For 25 Continuous Rides Between Bloomington 3 and 4 Sanders, Henley's Switch, Switch No. 10 and Switch No. 18. Good Only On Trains 5 Stopping Regularly At Stations 6 Named Above.
Conductor will punch out one of the Marginal numbers 7 for each Passage until they are all exhausted, when Ticket will be taken up and returned 8 to the Auditor. 9
Void after SIXTY DAYS from Date of Sale as Stamped on Back by Selling Agent. 10 Not Good In First Class Coaches.
25 24 23 22 21 20 19 18 17 16 15 14 13
Appellee had sold this form of commutation ticket for about two years prior to October, 1904. It was good on but two trains, No. 7 going, at 6:20 a. m., and No. 8 returning. These trains were used by appellant in going to and from his work at Henley's switch, which, prior to October 17, 1904, was a regular stopping point. There was no regular printed and published schedule in force as to stopping the train at the points mentioned; but “on each day prior to said 17th day of October, 1904 *** for several months *** the conductor of said trains No. 7 and No. 8 received special orders at Clear Creek to stop said train at the points named on said ticket.” On October 17th appellant still had several unused or unpunched numbers on his ticket and boarded train No. 7 at the regular passenger station in Bloomington to ride thereon to said station by virtue of such ticket. The conductor “refused to accept said ticket as fare, and informed the plaintiff that said ticket was not good on that train for said station, that he would not honor it, and that he would have to pay cash fare or get off the train.” “The conductor and brakeman testified *** that they announced to persons entering the train that the commutation tickets would not be honored, and that the train would not stop at the points named on said tickets.” “The plaintiff and his fellow workmen holding such tickets, who were put off the train, all testified denying that they had been told by any of the trainmen of the proposed change.”
One holding a railroad ticket is bound to inform himself, before taking passage, as to whether the train is scheduled to stop at the point of his destination. Pittsburgh, etc., R. Co. v. Nuzum, 50 Ind. 141, 19 Am. Rep. 703;Ohio & Miss. R. Co. v. Applewhite, 52 Ind. 540;Pittsburgh, etc., R. Co. v. Lightcap, 7 Ind. App. 249, 34 N. E. 243. Where, however, a special contract is made by the carrier to carry on a particular train to a particular place, it is required to perform the contract. Evansville, etc., R. Co. v. Wilson, 20 Ind. App. 5, 50 N. E. 90;Ohio, etc., R. Co. v. Hatton, 60 Ind. 12;Callaway v. Mellett, 15 Ind. App. 366, 44 N. E. 198, 57 Am. St. Rep. 238. If the ticket held by appellant amounts to a special contract to carry him from Bloomington to Henley's switch on train No. 7, it follows that his ejection therefrom was wrongful. The ticket was by its terms good on no...
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