Ill. Cent. R.R. Co. v. Sutton

• Citation: 1870 WL 6218,53 Ill. 397
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.JOSEPH J. SUTTON.
• Decision Date: 31 January 1870
• Court: Supreme Court of Illinois

53 Ill. 397

1870 WL 6218 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.JOSEPH J. SUTTON.

Supreme Court of Illinois.

January Term, 1870.

APPEAL from the Circuit Court of Ford county; the Hon. A. J. GALLAGHER, Judge, presiding.

The opinion states the case.

Mr. W. D. SOMERS, for the appellants.

Mr. E. L. SWEET, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case, tried in the Ford Circuit Court, on a change of venue, brought by Joseph J. Sutton against the Illinois Central Railroad Company, for damages resulting to the plaintiff by reason of his being put off a freight train on which he had taken passage without first procuring a ticket.

The jury found in favor of the plaintiff, and assessed his damages at eleven hundred and fifty dollars, on which the court rendered judgment.

To reverse this judgment, the defendants appeal to this court.

Appellants make the point that it was not proven the train on which the plaintiff embarked, was employed in carrying passengers. It may be true no proof was offered that this particular freight train was so employed, but it is proved by the appellants' witness, Oliver, that notices were posted up around the window of the ticket office that passengers on freight trains must first obtain a ticket, and it was proved by Mr. Ayers that appellants were, at the time of this occurrence, accustomed to carry passengers on freight trains. This train is not shown to have been an exception, besides, it is proved there were several passengers upon this train who had procured tickets. This is sufficient to show that this train was, pro hac vice, a train for the conveyance of passengers.

They make the further point, that the averment in the declaration of the defendants undertaking to convey the plaintiff from West Urbana to Tolono, is not sustained by proof of an undertaking to convey from Champaign City to Tolono.

It would appear, from the testimony, that West Urbana and Champaign City are one and the same place, consequently there was no variance.

The principal objection of appellants is made upon the instructions given for the plaintiff; the first, especially.

There is one objection to that instruction, in that part of it which directs the jury to consider, in estimating the damages, any mental suffering the plaintiff may have undergone, consequent upon the injury. The law is well settled, where the injury is not willful, mental suffering forms no part of the inquiry by a jury. 2 Greenlf. Ev. sec. 267.

The plaintiff had entered the caboose car of a freight train without a ticket, and though he offered to pay his passage, he was told by the conductor the rules of the company forbid him taking fare, and as he had no ticket he must leave the car, which the plaintiff did, and this not at a regular station of the company. Here is an absence of anything like willfulness or malice on the part of the conductor, and being so, mental suffering, by which we understand such as is produced by an injury to one's reputation, by circumstances of indignity...