Fell v. Northern Pac. R. Co.

• Decision Date: 19 November 1890
• Citation: 44 F. 248
• Parties: FELL v. NORTHERN PAC. R. CO.
• Court: U.S. District Court — District of North Dakota

44 F. 248

FELL v. NORTHERN PAC. R. CO.

United States Circuit Court, D. North Dakota.

November 19, 1890

S. L Glaspell, for plaintiff.

John S Watson, for defendant.

THOMAS J.

This is an action for personal injuries, alleged to have been sustained by the plaintiff by reason of being expelled from defendant's freight train. The action was tried by a jury, before Judge ROSE, at Jamestown, in the district court in and for the sixth judicial district of the territory of Dakota, at the April term of that court, 1889. The plaintiff had a verdict for $600. A motion for a new trial was made by the defendant in said territorial court, which was pending at the time the state of North Dakota, including all of said sixth judicial district, was admitted into the Union. The judge of the trial court settled a bill of exceptions. Upon the admission of said state, this action was transferred to this court upon the request of the defendant, pursuant to section 23, c. 180, Laws 1889, (25 St. at Large, pp 676-683.) On the 8th day of October, 1890, said motion was brought on to be heard before this court, sitting at Fargo in the south-eastern division of the district. It appears from the bill of exceptions that on the evening of the 26th day of July, 1888, the plaintiff applied to the defendant's ticket agent at Eldridge station, on defendant's line of road, in the territory of Dakota, for a ticket to ride on freight train No. 16, from that station to Jamestown, a station a few miles east of Eldridge, and also on the line of its road. Said freight train was due at Eldridge at 11:40 that evening. Prior to that day said train was not allowed to carry passengers. The ticket agent, in answer to said application, told the plaintiff that he would sell him a ticket for passage on train No. 16, as requested, and at the same time showed plaintiff an order of the company permitting passengers to ride on that train, which had been issued that day; and the plaintiff then and there purchased of said agent a first-class ticket for passage in said freight train No. 16 from Eldridge to Jamestown, aforesaid, and paid therefor 30 cents, the regular price. Said freight train was run in two sections on that evening. The agent flagged the first section, and after it had stopped the plaintiff showed the conductor thereof his ticket, and the ticket agent told the conductor that he had orders to sell tickets for that train, and showed the conductor thereof the order. The conductor thereupon told the plaintiff, as he claims, that the first section did not carry passengers, but that the second section would carry passengers. The plaintiff did not attempt to get onto the caboose of the first section. In this respect the conductor of the first section and the brakeman testify that the plaintiff did get onto the caboose of the first section, and, when told that he could not ride thereon, the plaintiff got out and walked back to the station. The conductor also denies telling him that he could ride on the second section. The ticket agent then flagged the second section, as it came up about five minutes after the first section had passed, and the plaintiff, as he claims, at once walked back to the caboose attached to the second section, then standing some distance west of the station. As he walked up to the caboose, some one called out therefrom: 'What do you want?' Plaintiff replied that he wanted to ride to Jamestown, and thereupon stepped upon the platform of the caboose, and found the door locket. The train started while plaintiff was standing upon the platform, and was in motion when the conductor opened the door of the caboose. The plaintiff passed into the caboose when the door was opened, and showed the conductor his ticket, and the conductor thereupon said: 'That ticket is not good on this train. You will have to get off. ' The plaintiff then told the conductor that he had bought that ticket to ride on that train, and that he was told by the agent that it was good on that train. The conductor then said to plaintiff: 'By God, you must get off this train; you have got to get off this train. ' Plaintiff then turned around and picket up his carpenter tools, which he had laid on the seat, and started towards the door, and said to the conductor: 'I can't get off this train. ' The conductor thereupon said: 'By God, you've got to get off. ' By that time plaintiff was out on the platform, and saw that the train was running very fast, and again told the conductor that he could not get off, and the conductor said: 'By God, you have got to get off, and if you don't, I will help you off. ' The plaintiff then stepped down onto the lower step of the platform. The conductor followed him there, and put his hand on plaintiff's shoulder, and said: 'If you don't get off, I will throw you off. ' Plaintiff said: 'Don't throw or push me off, I had rather jump. ' The plaintiff thereupon jumped off and struck on his feet, and then fell on his head and shoulders. Plaintiff had in his arms and pockets a saw, plane, hammer, and other tools at the time he jumped from the train. The train was in motion, and running very fast, as plaintiff claims, and was at that time about 800 feet from the place where plaintiff got onto the caboose, and it was quite dark at the time. The plaintiff picket up his tools, and walked back to the ticket office with some difficulty, and remained at the hotel near the ticket office until the next morning. Plaintiff suffered pain in one of his legs in the fall, and felt faint, and had some difficulty in walking back to the station. The pain continued more or less for three weeks, during which time he did no work. He suffered no permanent injury, and did not call a physician. He was delayed about 12 hours at Eldridge. The conductor and officials of the train give a somewhat different version of this affair. The defendant gave evidence tending to show that the conductor of the second section notified the plaintiff that he could not ride on No. 16 just before the train started up. In this respect the conductor testified:

'I was in the cupola, and I thought he was a railroad employee at first, and I stepped down and asked him what he had to ride on, and he showed me a ticket. I don't remember whether I took the ticket in my hand or not, and I told him we did not carry passengers, and he tried to explain to me that we did, and while I was talking to him we started up.'

Defendant also gave evidence tending to show that the conductor of the first section told plaintiff that he could not ride on the second section. Neither conductor had been notified, prior to arriving at Eldridge, of the new order.

The defendant contends that the court erred in refusing to give certain instructions, based on the evidence given on defendant's behalf, to the effect that plaintiff was notified, prior to the starting of the train, that he could not ride on it. After a careful examination of the evidence and the instructions asked and refused, I am of the opinion that none of the instructions refused distinctly raise the point suggested. They all assume some material fact neither admitted nor proved, which warranted the rejection by the trial court of the instructions. The following will illustrate them:

'(2) If you believe from the evidence that the plaintiff was advised or informed by the conductor before the train left the station at Eldridge that he, the plaintiff, would not be allowed to ride on the said train, and that the plaintiff neglected or refused to leave the train, and was afterwards expelled by the conductor without unnecessary force or violence, then your verdict must be for the defendant. (3) If you find from the evidence that the plaintiff purchased from the defendant's ticket agent at Eldridge a ticket which entitled him, plaintiff, to transportation from said station to Jamestown, and that said ticket agent advised him, plaintiff, that he could ride upon the freight train then about to arrive at said station, and that plaintiff, pursuant to said advice, thereupon mounted the caboose attached to said freight train, and if you shall also find that if, before said freight train started from Eldridge station, the conductor, or any other agent or servant of the defendant, advised or informed the plaintiff that he would not be allowed to ride upon said train, then the plaintiff had no right to rely upon the information given by the ticket agent; and if he chose, under such circumstances, so to do, and was afterwards expelled from the train without unnecessary force or violence, he cannot recover in this action.'

The first instruction above quoted...