Kansas & G. S. L. R. Co. v. Scott

• Decision Date: 11 October 1892
• Citation: 20 S.W. 725
• Parties: KANSAS & G. S. L. R. Co. v. SCOTT.
• Court: Texas Court of Appeals

20 S.W. 725

KANSAS & G. S. L. R. Co. v. SCOTT.

Court of Civil Appeals of Texas.

October 11, 1892.

Appeal from district court, Smith county.

Action by W. C. Scott against the Kansas & Gulf Short Line Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Finley, Marsh & Butler and Sam. H. West, for appellant.

WILLIAMS, J.

Appellee brought this suit against appellant to recover damages, claiming that he had been wrongfully ejected from appellant's train. The damages which he claimed were the amount of the fare from Wells, the station on appellant's road at which he was put off, to Tyler, the point of his destination, for violence, insults, and indignities offered to him by the conductor in ejecting him, and the value of a pass which he held, entitling him to ride over that road until December 31, 1908, and which he claimed was repudiated and rendered valueless by the action of appellant's agents. Appellant pleaded a general denial, non est factum, and other facts that will not be noticed further, as they are not involved in the points raised in this appeal. Verdict was rendered for appellee for $250 for the ejection, and $1,000 for the value of the pass.

During the trial, appellee, Scott, testified that the road was 98 miles long; that he intended to use the pass traveling over the road, as he passed over it frequently, getting lumber to use in building, in which business he was engaged some time ago; that he had traveled over the road on the pass without paying; and that it would have been useful to him, if honored, until A. D. 1908. Appellant resided at Tyler, one terminus of the road, and the fare from there to Lufkin, the other terminus, was $5.90. At this point, appellee was asked: "How many trips would you have probably made over defendant's road per year, had it not revoked the pass?" Appellant objected to this that it sought for the opinion of the witness, and that the witness should state the facts, and leave the jury to draw the conclusion. The objection being overruled, the witness answered: "I would have probably made ten trips per month." The court charged the jury that, in estimating the value of the pass, they should, among other things, consider the number of trips plaintiff would probably have made. This evidence of Scott is all the evidence shown in the record, affecting the value of the pass. The ruling of the court admitting this evidence is the ground of appellant's first assignment of error.

The court, in its charge, instructed the jury that if the agents of defendant used abusive language or insults to plaintiff, or offered indignities to plaintiff's person or character, he would be entitled to recover damages therefor. Appellant's third assignment complains of this charge, because there was no evidence to warrant it. Appellee, Scott, testified that he got on the cars at Lufkin, and between there and Wells presented his pass to the conductor. The latter said that no such pass had ever been issued. Scott replied, "That cannot be so." The conductor then said that the ticket had been scratched. Scott insisted that the pass had been properly issued from the office, and the conductor again said: "No, that pass is bogus. You will have to get off," — and threatened to put Scott off unless he would get off voluntarily. Scott said that he would not get off, but would have to be put off, as he was traveling on a good pass. The conductor waited until the train reached Wells, and then said to Scott that he looked upon him (Scott) as a gentleman, and did not want to put him off. Scott again refused to get off, whereupon the conductor said he would take Scott by the arm and lead him...