Holmes v. Carolina Cent. R.R. Co.

• Decision Date: 28 February 1886
• Citation: 94 N.C. 318
• Court: North Carolina Supreme Court
• Parties: J. G. HOLMES v. THE CAROLINA CENTRAL RAILROAD CO.

94 N.C. 318

J. G. HOLMES

v.THE CAROLINA CENTRAL RAILROAD CO.

Supreme Court of North Carolina.

February Term, 1886.

This was a CIVIL ACTION, tried before Shipp, Judge, at August Term, 1885, of MECKLENBURG Superior Court.

The action was brought by the plaintiff to recover damages from the defendant company, for an alleged injury sustained in consequence of having been wrongfully ejected from a car on the defendant's road. The plaintiff alleged, that prior to January the 4th, 1883, he had purchased of defendant a first-class ticket on said road, and that on the day aforesaid, he took his seat in a first class car on defendant's road, and soon after leaving Wilmington, going in the direction of Lumberton, the defendant's conductor came into the car, where he and several gentlemen were seated, and told them that was a car appropriated to ladies, and his orders were, that no one should be permitted to ride in that car, except ladies and their escorts. All the other gentlemen at once left, and went into the forward car, except plaintiff. He remonstrated, and insisted that by his contract with the company, he had the right to ride in that car, and insisted on maintaining his right. The conductor said that he was bound to comply with his instructions, and insisted that the plaintiff should comply with the regulations of the company, and approached him and laid his hand firmly but gently on his shoulder, and removed him to another car, which was not a first-class car, such as the defendant had contracted to carry the plaintiff in, but on the contrary, was deficient in all the comforts and conveniences usual in first class coaches. That it was filthy from constant use; was one half the size of a first class coach; was crowded with passengers; was filled with tobacco smoke, and was dirty, and improperly lighted; and he told the conductor he was sensitive to the odor of tobacco, and it was dangerous for him to inhale it; that he rode three hours on this car, and suffered great pain and mortification, &c.

The defendant admitted that the plaintiff was required to change his seat from the car appropriated for ladies, to another car used for the accommodation of gentlemen. It insisted that the car to which the plaintiff was transferred was a first-class car, and denied the allegations of the plaintiff that it was filthy and filled with tobacco smoke and other offensive odors, but, on the other hand, was furnished with comfortable seats, and was properly lighted; that the car into which the plaintiff was transferred was composed of two compartments, and divided by a close wooden partition, in the rear section of which smoking was not allowed, and was set apart for first-class passengers, while the other section was used for second class passengers. It denied that the conductor at any time put his hand on the plaintiff for the purpose of coercing or removing him, or at any time offered him any indignity, by word or act, but at all times treated him with courtesy and politeness, and when the conductor formally required the plaintiff to remove into the forward car, there was no one present but the conductor, porter and the plaintiff.

The plaintiff testified that the car into which he was transferred from the “ladies car,” was not a first-class car. It was low roofed, no ventilation, and no means of ventilation, except by the windows; the seats were low and dirty. It was poorly lighted with a kerosene lamp on one side, full of tobacco smoke and odors from the water closet. The air in the car was so very warm, that he had to raise a window to get relief from the smoke and odor and heat; that there was a crack between that and the smoking car, and the door being out of order, the smoke from the adjoining car was let into the one where he was sitting; that he was very sensitive to tobacco smoke, and when the conductor told him that he was required by his orders to remove him into the car assigned for gentlemen, he told him that he could not resist him physically, but that he protested against his removal, and would do so until there was such a show of force as to compel him; that the conductor allowed him to remain and take a cup of coffee which he had ordered, and after he had finished with his coffee, the conductor approached him and placed his hand firmly but gently on his shoulder, and forced him to move into the other car; that the only injury he sustained from his ride in the car to which he was removed, was a slight nausea and headache from which he was relieved by hoisting a window.

The only other witness who was introduced by the plaintiff was C. B. Wright, who testified that he was on the car that night, and that the car used for gentlemen that night was not what is known to the travelling public as a first-class car, but that it was not disagreeable to him, nor was the tobacco smoke, which he could smell, offensive.

On the part of the defendant, Mr. Harden testified that he had been in the employment of the Raleigh and Gaston Railroad, in charge of the motive power. The car described by the witness, was loaned to defendant a short time before the 4th of January. It was in good order when it left Raleigh; it was newly painted, with comfortable plush seats; was ventilated from the top by approved patent ventilators, and that it was used on the Raleigh and Gaston Railroad as first or second class car, as the occasion required.

Mr. Clark, one of the gentlemen removed from the ladies car, testified that the car to which he and the plaintiff and the others were removed, was clean and comfortable; that he was sensitive to the smoke of tobacco, but did not detect the odor of tobacco that night in the car, and he suffered no discomfort that night in his ride on the car.

Dr. Clark's testimony was in substance the same. Mr. Murchinson testified, that he rode on the car that night from Wilmington to Lumberton; that the car was clean, had comfortable seats, water closet and lights; that he did not detect the odor of tobacco, or any other offensive odor from the water closet. He conversed with the plaintiff on the trip, after he came...