Knowles v. Norfolk S.R. Co.
| Decision Date | 04 March 1889 |
| Citation | 9 S.E. 7,102 N.C. 59 |
| Parties | KNOWLES v. NORFOLK S. R. Co. |
| Court | North Carolina Supreme Court |
Action by Knowles against the Norfolk Southern Railroad Company, to recover damages caused by ejecting plaintiff from defendant's train. Verdict and judgment for plaintiff. Rule for new trial discharged. Defendant appeals.
The denial in the answer was so expressed as to show that the allegations of the complaint were construed by defendant to imply a charge of rudeness on the part of the conductor which was therefore denied. Held, that the doctrine of aider by answer applied, and the right to recover punitive damages for the rudeness, if proved, was established.
B. C Beckwith, for plaintiff.
Pruden & Vann, for defendant.
This was a civil action tried at the fall term, 1888, of the superior court of Perquimans county, before MACRAE, Judge. There was evidence on the part of the plaintiff tending to show that before the plaintiff was put off the train he offered to pay the conductor his fare, but that the same was refused; that the conductor was rude in his manner, and pushed the plaintiff as he got off the train. Evidence denying this, and showing that the conductor had acted discreetly and kindly in ejecting the plaintiff, and that the plaintiff refused to pay his fare or exhibit a ticket, was introduced by defendants. The following issues were submitted to the jury: (1) Did the defendants' agent wrongfully eject plaintiff from defendants' train? (2) What damage has plaintiff sustained?
The court charged the jury as follows: The defendants excepted to this charge, and assigned as error that the court instructed the jury that they might assess punitive damages, when, under the pleadings as they are, the plaintiff was not entitled, in any aspect of the case, to punitive damages. The jury answered the first issue, "Yes;" and the second, "$250;" and the court rendered the judgment set out in the record. Rule for new trial. Rule discharged. Defendants appealed.
The complaint, and answer and issues, were submitted as follows: The plaintiff, for complaint, alleges: (1) That the defendants are a railroad corporation, doing business in and under a charter of the general assembly of this state. (2) That the plaintiff on the ___ day of ___, 1887, purchased of the defendants' agent, at Winfall, a station on their road, a return ticket to Elizabeth City, also a station on said road. (3) That on his return, the day following, he was put off the train by the conductor, one Poindexter, because he had no ticket, which fact he, plaintiff, had not discovered until the same was called for. (4) That the plaintiff explained the case to the said conductor, telling him that he knew where his ticket was; that he could and would get it as soon as he reached Winfall, and there deliver it to him, or that he would deposit with him, the said Poindexter, money of the value of the ticket, to be returned if he should produce the misplaced ticket at Winfall, as agreed; that the money was tendered the said conductor, but he refused to receive the same, and forced the plaintiff off the train several miles from his destination. (5) That it is a custom of the defendants to accept money in lieu of tickets when the latter cannot be had. (6) That by said wrongful act of ejecting the plaintiff from said train he has sustained serious damage. Wherefore he prays judgment for the sum of $5,000 damages, and the costs of this action.
The defendant, answering the complaint in this cause, says: (1) That section 1 thereof is true. (2) That section 2 thereof is true. (3) That on the day named the plaintiff was a passenger on the defendants' train going from Elizabeth City south, and the conductor of said train called on him for his ticket, but was informed by the plaintiff that the same had been left by him in the pockets of another suit of clothes, and he could not then produce it, but would do so the next day. The conductor then demanded of him the usual fare between Elizabeth City and Winfall, where he wanted to go, but this the plaintiff refused to pay, but did offer to deposit with the conductor enough money to pay the fare, provided the conductor would agree to return the same if the plaintiff would next day produce the ticket. The conductor refused to do this, and informed the plaintiff that he was ordered in all cases to collect from passengers a ticket or the fare in money, and that unless the plaintiff presented his ticket or paid the fare he would put him off the train; and, upon the plaintiff's refusing to do either, the conductor, at the next station, stopped the train, and told the plaintiff he must get off, which he did. (4) That the conductor was carrying out in this matter the general orders of the defendant company; that he committed no violence whatever towards the plaintiff, but acted considerately and carefully towards him, and the plaintiff left, upon the demand of the conductor, and without being ejected by him. (5) That sections 3 and 4 of the complaint, so far as they state facts inconsistent with sections 3 and 4 of this answer, are denied. (6) That section 5 of the complaint, so far as it is inconsistent with this answer, is untrue. (7) That section 6 thereof is untrue. (8) That sections 3 and 4 of this answer are stated upon information and belief. Wherefore defendant demands judgment that it go without day, and recover its costs.
The following issues were submitted to the jury, viz.: Question. Did the defendants' agent wrongfully eject plaintiff from defendants' train? Answer. Yes. Q. What damage has plaintiff sustained? A. $250.
The appellant moved in this court for the first time to dismiss the action, because the complaint did not state facts sufficient to constitute a cause of action. It seems that the court of appeals of New York, giving effect to precisely the same language as section 99 of the Code of Civil Procedure and substantially the same as section 242 of the Code of North Carolina, have construed it to mean that the motion to dismiss, on the ground relied on in this case, would not be entertained when made for the first time in the appellate court. Bliss, Code, § 499, p. 355, note z. We must stand to our repeated decisions, that this court will, on motion or ex mero motu, dismiss an action on this ground, just as would be done when it appeared upon the face of the record that the action had been brought in a court that did not have original jurisdiction. Tucker v. Baker, 86 N.C. 1; Hunter v. Yarborough, 92 N.C. 68; Rogers v. Jenkins, 98 N.C. 129, 3 S.E. Rep. 821; Johnson v. Finch, 93 N.C. 205. But if the complaint does state facts that constitute a cause of action, by a fair construction of the language, the motion must be denied. If the language used in the fourth paragraph of the complaint is susceptible of the interpretation that the plaintiff tendered to the conductor the usual fare from Elizabeth City to Winfall, and that the conductor put him off the train notwithstanding the amount usually paid for passage between these points was offered, there is a statement of facts sufficient to constitute a cause of action. Nance v. Railroad Co., 94...
To continue reading
Request your trial