Harrison v. Fink

• Decision Date: 21 June 1890
• Citation: 42 F. 787
• Parties: HARRISON v. FINK.
• Court: U.S. District Court — Northern District of Georgia

42 F. 787

HARRISON v. FINK.

United States Circuit Court, N.D. Georgia.

June 21, 1890

Hall &amp Hammond, for plaintiff.

Bacon &amp Rutherford, for defendant.

Before PARDEE and NEWMAN, JJ.

NEWMAN J.

This is a motion for a new trial. At the conclusion of all the testimony, both plaintiff and defendant having introducing evidence, the court directed a verdict for the defendant, for the reason that, under the most favorable view of the evidence for the plaintiff, he was not entitled to recover. The facts in the case were substantially as follows:

On the 11th day of February, 1886, the plaintiff, accompanied by his friend, Mr. Allen,-- both being traveling salesmen,-- came from Monticello, in a private conveyance, to Flovilla, a station on the railroad operated by the defendant as receiver at that time. They came to Flovilla to take the train for the purpose of going to Jackson, a station on the same road, 15 miles from Flovilla. When they were out in the edge of the village of Flovilla, they heard the train on which they wished to take passage coming, between a quarter and a half mile distant. They drove up to the station, and got out of their vehicle, and went over to the railroad. The plaintiff went to the ticket-office in the depot to get a ticket to Jackson; Mr. Allen remarking to him at the time that he had a 1,000-mile ticket. The plaintiff did not find any one in the ticket-office, after looking all round although the window of the office was open, and he was unable to get a ticket. At this time the train was standing at the water-tank, which was distant, as appears by actual measurement, from the depot, 206 feet and 4 inches. It appears from the evidence of the railroad agent there, which is uncontradicted, that he had been in the ticket-office for some time before the train came up to the water-tank, and that he left the office, and went down to the water-tank to meet the train, for the purpose of transacting his business with the train. He saw the plaintiff and his friend as he came out of the office, and started to meet the train, but did not think, from their appearance, that they wanted anything. The train drew up in a few minutes to the station, and plaintiff and his friend got aboard. When the conductor came around to take up the tickets, Mr. Allen offered him his 1,000-mile ticket, when the conductor inquired if the plaintiff was traveling for the house for which the ticket was issued, and was informed that he was not. The conductor then informed Mr. Allen that he could not take his friend's fare out of that ticket. It is not disputed that the conductor was right about this. The plaintiff then told the conductor that he was unable to get a ticket in Flovilla, and offered him 15 cents to pay his fare to Jackson. The conductor stated to him that he was not authorized to receive the 15 cents only, as he had no ticket, but he would have to require him to pay 25 cents additional, for which he would give him a rebate check. It appeared that conductors had orders to require the payment of this 25 cents extra from all passengers without tickets, and to give them a check indicating the payment of it, which would be cashed at any office of the company. The rule of the company on this subject had been approved by the railroad commission of the state, and was printed and hung up in the cars. The plaintiff knew of the existence of the rule, as he stated to the conductor that he 'did not want a rebate check; that he frequently lost them, or failed to collect them. ' Plaintiff stated to the conductor that, as he had been unable to get a ticket, he did not think he ought to charge him more than 15 cents, the regular price. The conductor replied-according to the plaintiff, in a very gruff way-- that he had nothing to do with the ticket agent; that, if he did not pay 40 cents, he would put him off the train, but, if he paid it, he would give 25 cents rebate check; and the plaintiff replied, as stated above, that he did not want a rebate check, that he frequently lost them, etc., and the conductor said, 'Well, I'll put you off.' The plaintiff said, 'Go ahead.' The conductor then walked forward to the front of the coach, pulled the bell-cord, and stopped the train, and turned around, and started towards the plaintiff. The plaintiff, then, after the train was stopped, offered to pay the 40 cents, saying-- as he said, in a joking way-- that he did not feel inclined to walk back to Flovilla. The conductor, according to the plaintiff, got very angry at that, and replied that, as plaintiff had stopped the train, he could not ride on that train to Jackson for $100, and he would have to get off anyway. To this the plaintiff said: 'I replied that he could not put me off, and the conductor answered he would show me about that, and went forward, out of the coach. ' In a few minutes the conductor returned with several men the plaintiff presumed to be trainmen, as most of them had on the uniform. Plaintiff's supposition that these trainmen were brought back with him by the conductor is contradicted by the conductor, who says that he did not bring them with him; but it seems that these men observed that the train had stopped, and the conductor go forward and return, and came, as a matter of curiosity, after him. The conductor then walked up to where the plaintiff was sitting, and requested Mr. Allen, who was on the same seat, and next to the aisle, to get up, so that he could put the plaintiff off the train. When Allen got up, the conductor walked up, and, according to the plaintiff's evidence, caught him by the coat sleeve, and said, 'Come, get off.' The plaintiff had a newspaper in both hands at the time, which he had been reading. With his right hand, he shoved the conductor's hand back. The conductor then grabbed the plaintiff, in a very rough way, by the collar of his coat; and plaintiff again shoved his hand back, and said that if he hurt him, he would kill him. The conductor then put his right hand back to his hip pocket, and, before the plaintiff knew what he was going to do, pulled out his pistol, and leveled it at him, close to face, exclaiming: 'Let him hit me. Let him hit me. ' The plaintiff was still sitting in his seat, with the newspaper in his hand, but made no motion whatever of violence towards him. Several parties then pushed him aside, one of them being one of the trainmen, in uniform, who came up, and caught hold of the plaintiff's coat collar, and said 'that he would have to get off the train. ' The plaintiff replied: 'All right. I cannot help myself, but I do not want to be hurt. ' He continued holding the plaintiff's coat collar, and lead him out by the collar, and put him off the train. This is substantially the plaintiff's account of the transaction. The plaintiff's friend, Mr. Allen, who was examined as a witness for him, gives an account of the transaction somewhat different in detail from the plaintiff.

His testimony as to the immediate occurrence on which the case turns is as follows:

'Mr. Harris told him that he could not accept the fifteen cents, and they had a little discussion; and he went on to explain to him about the rebate check, and told him that the rule of the company was that, when a passenger got on the train without getting a ticket, he charged him an excess fare of twenty-five cents, which would be refunded at any station. Mr. Harrison told him that he could not occupy his time running around looking up ticket agents, when he got to stations, to get it cashed; that he might lose it, and it would be a waste of time, and he was not going to pay only fifteen cents. The conductor told him that he could not accept it, and he would have to put him off. After he had tendered the fifteen cents, and the conductor would not receive it, he told him he would have to put him off. He says: 'That's all right. That is all I am going to give you.' The conductor pulled the bell-cord, and walked to the front of the car, and came back, and told him he would have to get off. Mr. Harrison told him: 'You will have to put me off, for I am not going to give you any more.' The conductor stopped the train, and went out into the baggage-car; and, when the train slacked up, he came back,-- I was sitting by him,-- and he says: 'Will you please move, and let me put this man off?' I got on the opposite side of the car, and he says, 'You have got to get off,' and caught hold of Harrison; and he jerked his hand loose. Question. Who jerked his hand loose? Answer. Harrison jerked his hand loose. Q. Where did he catch him? A. About the collar or arm. He says: 'Come, my friend. You have to get off.' I think he caught him twice, and he knocked his hand loose. He says: 'Don't you hurt me. I will kill you.' In the mean time we were sitting together,-- he was on the other side of the seat; and, when I got up and moved on the other side of the car, he was still sitting in the corner next to the window, with a paper in his hands. I saw there was going to be a little scuffle, and he says, 'Well, Captain, rather than to have to walk, I believe I will pay the fare,' or offered to pay it. Q. He offered him the money? A. He offered him the money. Q. What did he offer him? A. He offered him silver, I suppose; and then the conductor told him-- he says: 'One hundred dollars would not pay your fare from here to Jackson. You have caused me to stop the train, and caused delay, and you have to get off.' Some one in the

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