Grogan v. Chesapeake & O. Ry. Co

• Decision Date: 11 April 1894
• Citation: 39 W.Va. 415,19 S.E. 563
• Court: West Virginia Supreme Court
• Parties: GROGAN v. CHESAPEAKE & O. RY. CO.

19 S.E. 563

39 W.Va. 415

GROGAN

v.CHESAPEAKE & O. RY. CO.

Supreme Court of Appeals of West Virginia.

April 11, 1894.

Carriers—Limited Railroad Ticket — Review on Appeal — Weight op Evidence — Newly-Discovered Evidence.

1. A railroad ticket, limited on its face to certain time for passage, is not good after its expiration, and one who is on a train, demanding passage upon it, and refuses to pay otherwise his fare, may be ejected from such train, no more force being used than necessary, and, though injury result to the party from a lawful ejection, it is not a ground of action.

2. Though evidence is conflicting, the court may set aside the verdict if against the weight of the evidence, but such power should be exercised cautiously. When the court does so, its action is regarded with peculiar respect in an appellate court, and will not be reversed unless plainly wrong.

3. In determining whether after-discovered evidence is cumulative or not, the court must see if the kind or character of the facts offered and of those presented' on the former trial be the same, and not whether they tend to produce the same effect It is the resemblance of such facts that makes them cumulative. The new and old facts may tend to prove the same proposition, and still be so dissimilar in kind as to afford no pretense for saying the new facts are cumulative upon the old.

(Syllabus by the Court)

Error to circuit court, Kanawha county.

Action by George T. Grogan against the Chesapeake & Ohio Railway Company. The verdict for plaintiff was set aside and new trial awarded, and plaintiff brings error.. Affirmed.

E. Willis Wilson and S. C. Burdett, for plaintiff in error.

Simms & Enslow and J. E. Chilton, for defendant in error.

BRANNON, P. George T. Grogan sued the Chesapeake & Ohio Railway Company in trespass on the case, and obtained a verdict for $1,200, which the court set aside, and Grogan obtained a writ of error to the order of the court setting aside the verdict. Grogan purchased a round-trip ticket from St. Albans to Charleston good for two days. He used it from St Albans to Charleston, and, after the ticket had run out, he boarded a train to return to St. Albans, and the collector having rejected the ticket as not good, and demanded of Grogan his fare, Grogan declined to pay. The collector told him he must either pay or get off, and he refused to do either, saying the conductor must put him off. This expired ticket was not good for passage, and, upon refusal to pay fare or get off the train, the company had the right to eject the plaintiff from the train, using no more force than necessary. McKay v. Railway Co., 34 W. Va. 65, 11 S. E. 737; 3 Wood, Ry. Law, §§ 347, 352; Hutch. Carr. §§ 575, 576, 580a; Pennington v. Railroad Co., 18 Am. & Eng. R. Cas. 310 and note; Lillis v. Railroad Co., 64 Mo. 464; Hill v. Railroad Co., 63 N. Y. 101; Elmore v. Sands, 54 N. Y. 512; McClure v. Railroad Co., 34 Md. 532; Shedd v. Railroad Co., 40 Vt. 88.

The right of ejection of the plaintiff existing undenied, it is, however, contended that the plaintiff was pushed from the train and hurt, and that, as a consequence, hernia followed, and that more force was used in his expulsion from the train than was necessary. Just here let us look at the plaintiff's own evidence, disregarding that for the defendant. He held a ticket limited in time on its face, constituting a special contract between him and the company that it would be used within that time, or be no longer good. He knew this. He was knowingly violating contract and law when he entered the train with a determined purpose, as evinced by his action, to ride on that ticket. He was persistent in that wrong when told why the ticket was not good. There could be no room for two opinions as to this. The face of the ticket told him, the collector told him, the ticket was not good. As the supreme court of Missouri said in Lillis v. Railroad Co., supra, of a person holding a ticket not good on a certain train, may be more strongly said here: "He went into that car not intending to acquire a right to ride on that train, but to compel the conductor to pass him on a void ticket, or make a case for a suit for damages. His entry into the train was made with evil intent, and he is entitled to no favor, but only to the rights which the law gives a trespasser." Why did he persist in staying on the car when requested to get off? He said, "You must put me off." He had no right to insist on the collector's putting himoff. It was his duty as a law-abiding man to get off. He brought the expulsion on himself by wrongful conduct. It was held in Railroad Co. v. Gants, 38 Kan. 608, 17 Pac. 54, that a person without a good ticket is a trespasser, and must get off when ordered, and cannot invite force to make a case. What is the height of the company's offense? By the plaintiff's own evidence, when the collector said the ticket was out of date, and the plaintiff insisted on his passage without payment, the collector said, "You will have to get off or pay your fare, " and then went and consulted with the conductor, and returned and caught plaintiff by the arm and said, "Come on; you will either have to get off or pay your fare;" and the plaintiff got up, without resistance, and walked out upon the platform, and offered his ticket again, and the train was stopped, and the collector said, "Get off, " and the plaintiff replied, "I am not going to; you will have to put me off." Why this demand? It was not necessary to save his right, had he had any, because the collector had already laid hands upon him, and removed him from his seat, to eject him. Why undergo the danger of injury of being forced from the train, when he could have safely stepped off? If he had any colorable ticket, he might be excused for demanding actual expulsion; but he had no show of right to remain. What might the company's servants do to enforce its clear right of ejectment? What did they do? The collector, as the plaintiff says, after saying again, for the second or third time, "Get off; get off, " put his hand against his back, and shoved him off the step down into a ditch, and he lit on his feet and hands, and notified persons that he would need them as witnesses. This was not an imprudent act or excessive force. How were the trainmen to get him off? Were they under obligation to get down and tenderly lift or ease him down? They did not strike or push him too hard, or use any harsh words. They did not push him off unawares. If he wanted, as he said, actual expulsion, he had warning to be alert and land safely on the ground. The train was not stopped on a fill, and he thrown down the bank. It was in a cut, with a bank two or three feet high, and a slight ditch for drainage by the side of the track. It was not, and is not claimed to have been, a dangerous place. The plaintiff says it was six or seven feet to the bottom of the ditch. He was a young, agile man, 29 years of age. He could readily have saved himself, if even it was so high as six feet. The company had a clear right to put him off the train, and exercised that right as a last resort at the bidding of the plaintiff by an act necessary to enforce it, not imprudent or excessive, and, even if injury did result to the plaintiff, it is not actionable, because justified by law, —a case of damnum absque injuria. In the case above cited (Railroad Co. v. Gants), it was held that in case the party is without warrant on the train, and declines to get off, and renders force necessary, he has no action unless the injury was willful,...