Indiana Railway Company v. Orr

• Decision Date: 19 March 1908
• Docket Number: 6,131
• Parties: INDIANA RAILWAY COMPANY v. ORR
• Court: Indiana Appellate Court

84 N.E. 32

41 Ind.App. 426

INDIANA RAILWAY COMPANY v. ORR

No. 6,131

Court of Appeals of Indiana

March 19, 1908

From St. Joseph Circuit Court; Walter A. Funk, Judge.

Action by Joseph G. Orr against the Indiana Railway Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

A. L Brick, D. D. Bates and A. G. Graham, for appellant.

Isaac K. Parks, for appellee.

OPINION

WATSON, J.

This was an action by appellee against appellant street railway company to recover damages for unlawful expulsion from one of appellant's cars. The cause was tried by the court. A special finding of facts was made and the conclusion of law thereon was that appellee was entitled to recover. He was awarded damages in the sum of $ 100.

Appellant assigns as error: (1) Overruling the demurrer to appellee's amended complaint; (2) the conclusion of law stated upon the special findings.

The facts found were, in substance, that appellant was incorporated under the laws of the State of Indiana, and was operating a street railway in the city of South Bend. By virtue of a contract between appellant and said city appellant was bound to issue transfers, free of charge, to all passengers requesting the same who boarded its cars at any point upon its line within the limits of South Bend and paid the regular fare, and whose destination was any point upon any other line within the city limits, such transfer ticket to be valid only upon the next car leaving on the line indicated after the arrival of the car upon which passage was first taken. On November 6, 1906, at about 7:30 o'clock p. m., appellee boarded a west-bound passenger-car on the North Side Mishawaka line within the city limits. Said car was due to arrive at the transfer station about 7:45 o'clock p. m. Appellee paid the conductor the regular fare, and asked for and received a transfer to the Chapin street line. Upon reaching the transfer station appellee boarded the first Chapin street car leaving said station after the arrival of the North Side Mishawaka car, and tendered to the conductor of the Chapin street car said transfer in payment of his fare. The conductor refused to accept the same, stating "that it is too old; that it was punched for the 7:15 o'clock car," and demanded a cash fare. Appellee explained to said conductor that the conductor of the North Side Mishawaka car must have made a mistake in punching said transfer ticket, as appellee had reached the transfer station on the 7:45 o'clock car, had immediately entered the Chapin street car upon which he was then riding, and that this car was the first one leaving the transfer station after his arrival there. For that reason appellee refused to pay another fare, and thereupon the conductor again demanded that he pay a cash fare or leave the car. Appellee again refused to pay an additional fare, whereupon the conductor rang the bell, stopped the car, ordered appellee to get off, and appellee did get off said car. A mistake had been made by the conductor who issued said transfer ticket to appellee, so that at the time appellee was ordered from said car said ticket did not show on its face that appellee was entitled to ride on it. The conductor of the Chapin street car had no means of knowing of such mistake except by the statement of appellee, and no malice nor abuse entered into or became a part of the conductor's ordering appellee from the car and requiring him to leave the same. Said conductor refused to believe appellee's statement that a mistake had been made in issuing said transfer ticket. The point where appellee alighted was about three blocks from his destination. There were sixteen passengers on said car at the time appellee was ordered and required to leave, a number of whom were acquainted with him, and he was greatly mortified and humiliated by being ordered and required to leave said car under said circumstances. At the time the weather was cold and rainy. None of appellant's employes touched the person of appellee, and he suffered no physical injuries thereby, but did suffer mental pain and humiliation. The conductor of the North Side Mishawaka car had inadvertently punched the transfer ticket to indicate that appellee was entitled to ride upon the 7:15 o'clock Chapin street car, and said ticket did so indicate. This was the result of the mistake of the conductor of the North Side Mishawaka car in punching said ticket. Appellee was unaware of said mistake, and had no knowledge thereof until his attention was directed thereto by the conductor of the Chapin street car.

The allegations of the complaint and the special findings of fact show that the action and the recovery were based upon the unlawful ejection of appellee from one of appellant's passenger-cars.

In the case of the Indianapolis St. R. Co. v Wilson (1903), 161 Ind. 153, 170, 66 N.E. 950, the court said: "What the court held was, that the ticket furnished to appellee by appellant, as shown, could not be regarded as conclusive evidence between the parties; that, under the circumstances, it was open to the explanations made by appellee at the time...