International & G. N. R. Co. v. Wilkes

• Decision Date: 18 October 1887
• Citation: 5 S.W. 491
• Parties: INTERNATIONAL & G. N. R. CO. v. WILKES.
• Court: Texas Supreme Court

5 S.W. 491

INTERNATIONAL & G. N. R. CO. v. WILKES.

Supreme Court of Texas.

October 18, 1887.

Appeal from district court, Gregg county; FELIX J. McCORD, Judge.

F. H. Pendergast, for appellant. R. B. Levy, Jr., for appellee.

WILLIE, C. J.

The plaintiff below purchased a ticket entitling him to be transported on the defendant's railroad from Longview to Kilgore, a distance of about 12½ miles. He boarded the proper train, after exhibiting his ticket to the brakeman who stood at the door, then placed the ticket in his vest pocket, and took his seat in the car. When the conductor came around to collect tickets, the plaintiff felt in his vest-pocket for his, but could not find it at the moment. While searching for the ticket, he told the conductor that he had a ticket, and that it was somewhere about his clothing, and to wait a minute or so, and he would find it, and give it to him. The conductor replied, impatiently: "If you have a ticket, it need not take you all night to get it. You must get the ticket or get off;" and immediately pulled the bell-cord to stop the train. The plaintiff then told him that the brakeman had seen his ticket, and that he could call his brakeman and ask him. He did not call the brakeman, but again told the plaintiff to get off; remarking, at the same time, that persons had tried to play that on him before. Plaintiff then offered to pay his fare to the extent of the change that he had in his pocket, but this being only 45 cents, and the fare being 50 cents, the conductor would not receive it; and, in spite of the request of the plaintiff to wait a reasonable time for him to find his ticket, the conductor stopped the train, and ordered him off; an order which he obeyed, the conductor making demonstrations of using force to carry out his command. The train then pulled out, leaving the plaintiff in the woods near a water-tank, and at a place where there were no residences. The plaintiff, just after the train left, found his ticket, which had slipped through a hole in his pocket, and got in next to the lining of his vest. It was about a minute and a half between the time the conductor called for the ticket and the time at which he ejected the plaintiff from the cars. All this occurred after midnight, and the night was dark, and the place swampy; and the plaintiff, not knowing what distance he was from either Longview or Kilgore, walked back to the former, crossing a railroad bridge over the Sabine river a half mile long, and arriving at Longview about an hour and a half after he had left that place on the train. As a consequence of these facts he became sick, and lost two weeks from work, and had a doctor in attendance on him. For the mortification suffered by him in being ordered off the train in the presence of the other passengers in manner as stated, and the pain of mind and body, loss of time, and expense to which he was subjected by reason of being put off the cars, and forced to walk to Longview, he claimed damages to the extent of $10,000. The jury rendered a verdict in his favor for $500, and a motion for a new trial having been filed upon the ground, among others, that the damages found by the jury were excessive, his counsel remitted $150, and the court rendered judgment for the balance. From that judgment this appeal is taken.

It is not disputed by the appellant that the conductor was bound to wait a reasonable time for the plaintiff to produce his ticket, but it is claimed that he complied with this requirement of the law. This was a question of fact for the jury, and, under a charge not complained of, they found it in favor of the plaintiff, and we cannot say that their finding is not in accord with the evidence. What would have been reasonable time depends upon the circumstances of the case. The only fact which would have authorized an immediate expulsion of the plaintiff was a positive refusal to produce a ticket or pay fare. There was no such refusal; on the contrary, the plaintiff told the conductor that he had a ticket about his clothing, and would find it in a minute or two and give it to him. This was a statement of something that might frequently happen, — the placing of a ticket in some part of the clothing where it could not be readily found. If true, and he found the ticket, he was entitled to all the rights of a passenger; if not true, its falsity could soon be demonstrated. The conductor had no reason to suppose it false; for, if the plaintiff intended to ride to the next depot without paying fare, the delay of a few moments under pretense of looking for his ticket would not have furthered his object. He also offered to prove by the brakeman that he had shown him his ticket when getting on the car. While the conductor was not bound to receive this as proof that the plaintiff had a ticket, it should have convinced him that his assertion to that effect was in good faith, since, if not true, the brakeman was there to disprove it. But the conductor seems to have treated the statement as false the moment it was made, and the defendant as a trespasser, and to have allowed but little more time to search for his ticket than was consumed in stopping the train, and hurrying the plaintiff from the car. That the latter did have a ticket, and would have found it had he been allowed but a moment longer for the search, was shown by the fact that he did find it in his clothing immediately after the train moved off and this occurred so soon as he was ejected. We think the conductor acted too hastily, and the jury were justified in so finding. Maples v. Railroad Co., 38 Conn. 557; Hayes v. Railroad Co., 18 Amer. & Eng. R. Cas. 363; Clark v. Railroad Co., Id. 366.

The second assigned error is virtually disposed of by what we have already said. It complains that the...