Georgia R.R. & Banking Co. v. Eskew

• Decision Date: 23 February 1891
• Citation: 12 S.E. 1061,86 Ga. 641
• Parties: GEORGIA RAILROAD & BANKING CO. v. ESKEW.
• Court: Georgia Supreme Court

12 S.E. 1061

86 Ga. 641

GEORGIA RAILROAD & BANKING CO. v. ESKEW.

Supreme Court of Georgia

February 23, 1891

Syllabus by the Court.

1. There was evidence from which the jury could infer that the plaintiff was wrongfully expelled from the train, and thereby denied the enjoyment of his legal rights as a passenger. It is no excuse for expulsion that the conductor made a negligent mistake as to the station indicated on the face of the ticket which the plaintiff had exhibited and surrendered to the same conductor.

( a) A passenger need not wait to be forcibly ejected. If before or after the train reaches a certain station he is ordered by the conductor to get off at that station, the order seeming to be peremptory, and the passenger so understanding it, he may yield to the conductor's authority, and leave the train at the station indicated though the conductor be not immediately present when this is done. In such case, if the passenger acts contrary to his own will, and in obedience to the conductor's command, he is coerced, and is entitled to redress for his expulsion.

2. Where punitive as well as compensatory damages are in question, the intention involved in the alleged tort is material. Whether the conductor intended to expel the plaintiff, or was misunderstood as to his purpose, was relevant evidence on the claim for punitive damages. The conductor was competent to testify as to what his intention really was.

3. In arriving at the conductor's intention, the jury could consider that he remained silent on hearing the plaintiff remark, after he alighted from the train, "that it was hard to be put off and be compelled to pay one's fare."

4. The cause of action being traceable to a mistake of the conductor, and not to his willful or intentional violation of the plaintiff's rights, a verdict for $750 damages has the appearance of being excessive, under all the facts and circumstances in evidence.

5, 6. A person upon whom a wrong has been committed is under obligation to lighten the consequential damages as much as he can by the use of ordinary care and diligence. This applies in case of an expelled passenger, to the time and mode of traveling from the place of his expulsion to the station at which he was entitled to be set down. It applies also to fatigue, hardship, and injury to his health involved in reaching there. Though he could not be compelled to pay fare to avoid wrongful expulsion, after being expelled he could not recover damages for walking, and its consequences, when he might have reached the station more cheaply and expeditiously, and with less injury to his health, by riding on the same or a subsequent train, or by securing other conveyance; nor, as a general rule, could he recover for inconvenience, hardship, or injury to health originating after reaching the station to which he was entitled to be carried, or needlessly caused by walking and exposure before reaching there.

7, 8. Compensation for wounded feelings, as well as punitive damages, should be adjusted to all the circumstances of the actual case.

Error from superior court, Rockdale county; BOYNTON, Judge.

J. B Cumming and A. C. McCalla, for plaintiff in error.

H. T. Lewis and Geo. W. Gleaton, for defendant in error.

BLECKLEY C.J.

The learned counsel for the railroad company argued only four of the grounds of the motion for a new trial. To these our opinion will be confined.

1. That the evidence, construing it, as we are bound to do, most favorably for the prevailing party, warranted a verdict for some amount against the company, we have no doubt. The tickets surrendered to the conductor by the plaintiff and his brother were from Atlanta to Social Circle; and that the conductor could and would have known this, had he exercised due care in the transaction of his business, admits of no question. If by reason of his own negligent mistake he expelled the plaintiff at Conyers, an intermediate station, when the plaintiff was rightfully on the train and entitled to be carried to his destination at Social Circle, the expulsion was wrongful, and a breach of the legal duty of the company as a common carrier. A passenger who has paid for and supplied himself with a ticket in all respects valid and regular, boarded the proper train, conducted himself thereon in a proper manner, and surrendered the ticket to the company at its own request, cannot be required either to produce the ticket when again called upon for it, nor to pay fare as a condition of remaining upon the train, and being carried to the point indicated upon the ticket as the terminus of his route. He has no further concern with the ticket, and can lose none of his rights by any mistake made by the conductor in reading it, construing it, mingling it with other tickets, or disposing of it otherwise.

(a) Although the conductor neither used physical force to expel the plaintiff from the train, nor was immediately present when the plaintiff left the train at Conyers, yet it was in fact an expulsion if the plaintiff alighted against his own will, and as an act of obedience to the conductor's previous command. Nor does it matter whether the command was given shortly before the train arrived at Conyers, or after its arrival, provided it was or seemed to be peremptory, and the plaintiff so understood and treated it. There was evidence from which the jury could infer that the command appeared peremptory, and that the plaintiff yielded to it in good faith. While a passenger cannot avail himself of a formal order of the conductor, not meant to be absolute and final, as a pretext for leaving the train and grounding an action against the company for expulsion, yet, where the circumstances fairly warrant him in believing that the conductor means what he says, and he really does believe it, he need not wait for the employment of actual force against him, but may submit to the moral coercion of the conductor's authority, and may abandon the train as an expelled passenger. If conductors do not mean that passengers shall withdraw themselves from trains, they should not issue their commands prematurely. All passenger conductors are by statute invested with the powers of police officers while on duty upon their trains. Code, § 4586 a. A passenger, whether right or wrong in any contention or misunderstanding with a conductor, is under no duty, legal or moral, to stand out until the conductor appeals to force for the execution of his commands. If the passenger obeys and thereby does an act to which his own will does not consent, he is coerced. Railroad Co. v. Homer, 73 Ga. 251. So far from being under a duty to resist, he would generally put himself in the wrong by offering resistance. For the sake of peace and good order, he ought to submit.

2. Section 3066 of the Code reads thus: "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff." This section was applicable to the case as made by the evidence of the plaintiff below, and was properly given in charge to the jury. Railroad Co. v. Homer. 73 Ga. 252; Railroad Co. v. Olds, 77 Ga. 674. For this reason the intention of the conductor was for investigation and determination by the jury as an element affecting punitive damages. Railroad Co. v. Homer, supra. If the purpose of the conductor was misunderstood, and he really had no intention of expelling the plaintiff from the train although he had used language calculated to produce that impression, there was no aggravating circumstance taking its character from intention, and therefore no aggravating circumstance at all, unless found in the act itself, considered apart from intention, and viewed in the light of the time, place, and manner of its commission. From the general tenor of the conductor's evidence, it is highly probable he would have testified, had he been allowed to do so, that he had no intention to expel the plaintiff at Conyers. We think the court erred in refusing to allow counsel for the company to ask the conductor "whether or not it was his purpose to eject plaintiff from the train." As bearing upon the question of punitive damages, this was a legitimate inquiry; and there can be no doubt that the conductor was a competent witness to prove what his intention really was. There were divers circumstances in evidence tending to show that he intended expulsion. His answer on oath that he did not would have been direct evidence to the contrary of what the circumstances, as indirect evidence, tended to establish. In deciding upon the question of intention, the jury should have had before them both the direct evidence, excluded, and the indirect, which was admitted. The company could not escape being affected by the conductor's intention, and, this being so, it should have been allowed to show what that intention was. If the plaintiff had afterwards waived any claim for punitive damages, this error of the court would have been immaterial; but as there was no such waiver, and as the amount of damages awarded by the jury was very large for such a case, we think the company is entitled...