GlLLINGHAM v. Ohio RlVER R.R. Co.

• Decision Date: 12 December 1891
• Citation: 35 W.Va. 588
• Parties: GlLLINGHAM v. OHIO RlVER RAILROAD Co.
• Court: West Virginia Supreme Court

35 W.Va. 588

GlLLINGHAM

v.OHIO RlVER RAILROAD Co.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1891.

Decided December 12, 1891,

1. RailroaD C()m i 'a nies Pa sse n gers.'

A common carrier of passengers is one who undertakes for hire to carry all persons indifferently who may apply for passage, so long as there is room and there is no legal excuse for refusing.

2. Hai lroad Companies Passengers.

Every one riding in a railroad car is presumed prima fade to be there lawfully as a passenger, having paid or being liable when called on to pay his fare.

3. Railroad Companies Passengers Conductor.

It is the duty of the carrier to treat the passenger properly and carry him safely to protect the passenger against any injury from the negligence or willful misconduct of its servants while performing the contract, and of his fellow passengers and strangers, so far as practicable.

4. Railroad Companies Passengers,

The common carrier of passengers is not an insurer of their safety, or of their proper treatment, but is liable for their injury or improper treatment due to the negligence or willful misconduct of its servants while engaged in executing the contract.

5. Railroai.) Companies Passengers Fai.sr Imprisonmext.

The common carrier of passengers is liable for the false imprisonment of a passenger, made or caused to be made by its conductor in charge of the train during his execution of the carrier's contract to treat properly and convey safely.

6. Railroad Compani rs Passengers Conductor.

Section 31, chapter 146 of the Code, which enacts anions other things that "Hie conductor of every train of railroad cars shall have all the powers of a conservator of the peace, while in charge of the train," does not relieve the carrier of passengers from such liability.

7. Railroad Companies Passengers False Imprisonment.

A case of false imprisonment of a passenger by the conductor, in which these principles are applied.

Z. T. Vinson for appellant cited Thomp. Trials § 2685; Ell. Adv. 659; Beach R'y § 889; 11 S. E. Rep. 767; Ror. R'ds 842, 1192; 26 Ind. 70, 72; 19 Ohio St. 110; 64 N. Y. 136; 69 N. Y. 170; 36 X. Y. § 222; 91 Pa. St. 256; 37 Mich. 205; 60 Mo. 413; 6 Q. B. L. R. 318; 4 Daly 338; 66 Mo. 572; 57 Yt. 135; 45 Conn. 44; 139 Mass. 556; 9 Ill. App. 632, 639; 39 N Y. 381; 36 Hun. 643; Mech. Agency §§ 732, 734, 735, 737, 740; 7 Am. Rep. 418; 60 Am. Dec. 765; Ror. R'ds 842.

Gibson § Michie for appellee, cited 29 Am. & Eng. R'd Cas. 320; 28 Id. 455; Id. 288; 34 Id. 4621; Id. 378; 33 Id. 407; 9 Id. 264; Id. 412; 30 L. P. Rep. Q. B. 148; 5 L. R, A. 442; 12 Am. & Eng. R'd Cas. 127; 8 Id. 354; 13 Id. 1; 44 Id. 384; Harris v. Louisville &c. R'd Co. 35 Fed. Rep.; 42 Hun 587; 136 Mass. 552; Cool. Torts 685.

Holt, Judge:

This was an action of trespass on the case brought on the 15th day of October, 1889, in the Circuit Court of Cabell county by Elmer Gillingham against the Ohio River R. R, Co., averring in substance that at the station in the town of Huntington, he was on defendant's passenger train with the proper ticket for Ben Lomond, a station on defendant's line, and that defendant through its agent the conductor, unlawfully, falsely, maliciously and without reasonably probable cause, caused plaintiff to be arrested handcuffed, and led and driven in the daytime through the principal street of Huntington, a long distance, to the office.of a justice, on an unfounded charge, before whom he was tried on the merits, found innocent and discharged; all of which was done by defendant, to plaintiff's great mental anguish, humiliation and distress, loss of time, inconvenience and expense, to his damage, etc. Defendant appeared and demurred to the amended declaration, and the court overruled the demurrer, and thereupon defendant pleaded not guilty. The cause was tried by a jury, who brought in a verdict for one thousand dollars damages; defendant moved the court to set the same aside and award a new trial and made various other motions, all which the court overruled and rendered judgment; and defendant brings the case here on writ of error.

On behalf of plaintiff four witnesses were examined, himself, the officer who made the arrest and W. A. Thornley and William Bell, who were present at the arrest and during the transactions which led to it. On behalf of defendant one witness was examined, viz.: the conductor of the passenger train who caused the arrest to he made.

The record sets out in full the evidence, not the facts proved; as to a large part of it, however, there is no substantial conflict, so that it can be safely said for the present purpose, that the facts are as follows:

The plaintiff, twenty four years old, was a farmer living in Ohio, nine miles from Gallipolis, but for a short time preceding 17th September, 1889, had been working for Thornley at a saw-mill in Cabell county, W. Va. On that day he came into Huntington and bought a railway ticket from defendant for Greenbottom depot, He had an uncle living in Huntington, and before starting received a letter from home stating that his mother was sick; thereupon he decided to go on up to Ben Lomond station, and bought from defendant a ticket for that place. He then went back to the depot, some forty minutes before the schedule time for his train to start, Thornley being with hint. The train was standing on the sidetrack about thirty five yards above the depot, It was raining very hard, and they walked across the track and got on a coach.; but finding it locked, they stood on the platform until it was unlocked, when they went in and sat down in the smoking car, as Thornley was smoking. The conductor and brakeman were on the train when the plaintiff got on. When Gillingham, the plaintiff, and Thornley got on the platform, they were followed onto it by one Coffer, a young man very perceptibly intoxicated at the time. Plaintiff was entirely sober, not having drunk anything intoxicating that day, being orderly and well behaved as well as sober, making no disturbance of any kind during the whole transaction. But Coffer commenced kicking or pounding on the door, when the conductor went to the door, saw Coffer standing at the far side. Coffer looked and acted as if very drunk.

Therefore the conductor put his hand on Coffer's shoul- der and said, "Young man you ought not to go on the cars this way, you might get hurt or killed and then I would he responsible for it." Coffer then put his hand down into his pocket and drew out an open knife, with a blade three or four inches long. The conductor stepped back into the car, picked op a coupling pin, went to shut the door, when Coffer raised the knife a second time. The conductor hit him on the knuckles with the pin and he Coffer threw the knife "down like." The conductor told him to get off the train or he would throw the pin at him, and picked it up for that purpose but refrained, but at the depot, sent the baggage master for a police officer. Witness Beatty, the policeman, came, when the conductor told him to arrest a man who was in the smoking car, who he was afraid would do him some harm. The policeman, conductor and another, passed out of the baggage car into the smoking car and there they found plaintiff Gillingham seated, Thornley smoking sitting behind him on the same seat with Coffer, Coffer having his head leaning on the back of plaintiff's seat. The conductor pointedout plaintiff and directed the policeman to arrest him. The policeman asked the conductor, "are you sure that is the man?" The conductor said he was, and that he had a knife. The policeman then ordered plaintiff to stand up and take out his knife, and the conductor came up and said he recognized the knife, and plaintiff handed it to policeman and pointing to Coffer on the next seat behind, said: "It was not me but that man." The policeman raising Coffer's head off the seat, asked Coffer what was the matter with him. Thornley also then said Coffer was the man; and Beatty, the officer, thinking there must be something wrong and that the conductor was mistaken, again asked him if plaintiff was the man, and the conductor told him he was sure he was the man, and to take him and hold him until he came hack; then the policeman put handcuffs on plaintiff and started with him. Thornley went out on the platform and again told them plaintiff was not the man. The policeman led plaintiff through the street with the handcuffs on, first to his uncle's James Gillingham, and then to the office of the justice; and the conductor moved out with the train. The justice tried the case on the merits, acquitted the prisoner and discharged him.

Plaintiff did not look like Colter, in dress, size or otherwise. Plaintiff was sober, quiet and well behaved. Defendant asked the conductor as its witness: "Was the act of your pointing out the man as the one who had committed the assault upon you a personal one." He answered: "It was personally done." He further said: "Plaintiff had done nothing that he knew of in violation of the rules of the defendant company, had done nothing against its property, and that he himself was off duty as conductor, when the arrest was made, he thought; and that he honestly believed that plaintiff was the man who cut at him with the knife."

The defendant as a common carrier of passengers was bound to treat the plaintiff as one of its passengers respectfully, and carry him safely to Ben Lomond, the point his ticket called for. "Among the obligations which such a contract imposes are 'to protect the passenger against any injury from negligence or willful misconduct of its servants, while performing the contract, and of his fellow passengers and strangers, so far as practicable; to treat him respectfully, and to provide him with the usual accommodations, and any information and facilities necessary for the full performance of the contract on the part of the carrier, ' and these obligations continue to rest upon the carrier, its servants and employes, while...