Ill. Cent. R. R. Co. v. Whittemore

• Decision Date: 30 April 1867
• Citation: 1867 WL 5058,43 Ill. 420,92 Am.Dec. 138
• Parties: ILLINOIS CENTRAL R. R. CO., and N. W. COLE,v.WILLIAM T. WHITTEMORE.
• Court: Illinois Supreme Court

43 Ill. 420

1867 WL 5058 (Ill.)

92 Am.Dec. 138

ILLINOIS CENTRAL R. R. CO., and N. W. COLE,

v.WILLIAM T. WHITTEMORE.

Supreme Court of Illinois.

April Term, 1867.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Marshall county; the Hon. SAMUEL L. RICHMOND, Judge, presiding.

The facts in this case are sufficiently stated in the opinion.

Messrs. WILLIAMS & BURR, for the appellants.

Messrs. INGERSOLL, PUTERBAUGH & SHAW, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of trespass, brought by Whittemore against the Illinois Central Railroad company and N. W. Cole, a conductor in the service of the company, for wrongfully expelling the plaintiff from a train. It appears, the plaintiff had taken passage from Decatur to El Paso, and had procured the necessary ticket. After the train passed Kappa, the station preceding El Paso, the conductor demanded the plaintiff's ticket, which the latter refused to surrender without a check. This the conductor refused to give, and after some controversy with the plaintiff, stopped the train and with the aid of a brakeman expelled the plaintiff. There is considerable evidence in the record given for the purpose of showing, that, even admitting the right of the defendants to expel the plaintiff, an unnecessary and wanton degree of violence was used, from which the plaintiff received a permanent and severe injury. As, however, the case must be submitted to another jury, we forbear from any comments on this portion of it. The jury gave the plaintiff a verdict for three thousand, one hundred and twenty-five dollars, for which the court rendered judgment, and the defendants appealed.

In sustaining a demurrer to the fourth plea, and in giving the instructions, the Circuit Court held, that, although the rules of the road required the conductor to take up the plaintiff's ticket, and notwithstanding he may have refused to surrender it when demanded, the defendants had no right to expel him from the cars, except at a regular station. In support of this position, it is urged by counsel for appellee, that the refusal to surrender the ticket was merely equivalent to a refusal to pay the fare, and that the statutory prohibition against the expulsion of passengers for this cause, except at a regular station, should be applied to cases like the present. We held, in the case of C. & A. R. R. v. Flagg, decided at the January Term, 1867 (43 Ill. 364), that the neglect to buy a ticket before entering the train, when required by the rules of the road, was the same thing in substance as the refusal to pay the fare, and justified an expulsion only at a regular station. But the refusal to surrender a ticket, for which the requisite fare has already been paid, is certainly not the same thing as refusal to pay the fare. It may be no worse offense against the rights of the railroad company than the refusal to pay the fare, but it is not the same offense. Perhaps there was no good reason why the legislature should have...