Little Rock Railway & Electric Co. v. Goerner

• Decision Date: 23 July 1906
• Citation: 95 S.W. 1007,80 Ark. 158
• Parties: LITTLE ROCK RAILWAY & ELECTRIC COMPANY v. GOERNER
• Court: Arkansas Supreme Court

95 S.W. 1007

80 Ark. 158

LITTLE ROCK RAILWAY & ELECTRIC COMPANY v. GOERNER

Supreme Court of Arkansas

July 23, 1906

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge reversed.

STATEMENT bye THE COURT.

The appellee alleged that on September 3d he boarded and paid his fare on a car of appellant going north on Main Street, which was bound for East Markham Street, and obtained a transfer to a West Markham Street car. That the conductor of said west-bound car took up his transfer ticket, and, without fault of plaintiff, called him a "deadbeat", and struck him over the eye with some instrument, inflicting severe wounds on his head and face, and pushed and pressed him back upon the railing of the car, inflicting wounds on his back and shoulders. That the transfer ticket was presented within the proper time, and the conductor was in the line of his employment at the time he committed the assault and battery upon the plaintiff. He prayed for judgment in the sum of $ 1,500.

The appellant denied that plaintiff became a passenger on its west-bound car, and that its conductor took up his transfer ticket, and then, without fault of his, called him a "deadbeat", and struck him over the eye; denied that the transfer ticket was presented within the proper time, and that plaintiff was entitled to ride thereon. And further answering, alleged that, if there was any difficulty between plaintiff and its conductor, such difficulty was provoked by abusive language and insulting conduct toward the conductor.

The appellee testified in substance that he boarded one of appellant's East Markham Street cars between Sixth and Seventh on Main Street; that the car was going north; that he paid his fare, called for and received a transfer to Pulaski Heights; that at Main and Markham he boarded a Pulaski Heights car immediately after debarking from the car on which he was riding. The conductor was the same who on the previous occasion had compelled appellee and his wife to get off the car. He took up appellee's transfer, and asked him if he got his transfer the other night. Appellee answered in the affirmative, whereupon the conductor called him "a liar and a deadbeat," and pounded appellee with a "billet," inflicting upon him painful injuries in his eye, back and shoulder.

W. H Rankin, a justice of the peace, testified that there was a trial or investigation of the conductor before him, and that Mr. Loughborough, one of the attorneys for the street car company, represented the conductor.

The testimony on behalf of the appellant tended to show that the fight between the conductor and Goerner was brought on by the latter; that he presented a transfer ticket to the conductor at 10:30 o'clock that was issued at 9 o'clock. The transfer ticket was therefore an hour and a half late, and void under the rules of the company, according to the testimony on behalf of appellant. There was testimony also tending to prove that the transfer ticket was from a Fifteenth Street car, instead of an East Markham as claimed by appellee. There was testimony that appellee had boarded the same car at the same place two or three times before that, and presented transfers that were late, which the conductor refused to accept. When the conductor called appellee's attention to these things, he said he was not going to pay another fare. Thereupon the conductor said to him: "It looks to me like you are trying to beat anyway." Then appellee "grabbed" the conductor by the throat, and the latter struck appellee one blow "to protect himself." Such was substantially the testimony of the conductor. He contradicted the testimony of appellee in every material statement, and the testimony of the conductor was corroborated by other witnesses who were on the car at the time and also by the motorman.

The court gave at the request of appellee the following instructions:

"1. If you find from the evidence that plaintiff took a car of the defendant on Main Street, paid his fare and obtained a transfer ticket from the conductor on said car, and took a Pulaski Heights car, intending to present said ticket to the conductor of said Pulaski Heights car, the plaintiff became a passenger on said car, and was entitled to courteous treatment at the hands of said conductor; and if you find that he was, without fault on his part, not treated with care and courtesy, you will find for the plaintiff.

"2. You are instructed that, if you find for the plaintiff, you may find for him in such a sum as in your judgment will compensate him for pain and suffering, humiliation and loss of time which you may find he sustained by reason of said injury.

"3. You are instructed that if you find from the evidence that the conductor wilfully and wrongfully struck and injured plaintiff, you may find by way of punishment, in addition to any actual damages sustained, if you find any actual damages were sustained, such additional damages by way of punishment as in your judgment will deter others from like conduct again.

"4. If you find from the evidence that plaintiff boarded a car with a transfer which he believed to be good and valid, you will find for the plaintiff on this point, although you may find as a matter of fact said transfer ticket was invalid unless you further find that plaintiff did not intend to pay fare."

The court also gave the following:

"8. If you find from the evidence that the transfer ticket which plaintiff presented to the conductor of defendant was received by plaintiff previous to or at the hour shown by the punch mark on said ticket, and that plaintiff did not present it for payment of his passage on the first Pulaski Heights car passing Markham and Main after he left the other car then the court instructs you that the transfer ticket was invalid, and the conductor was not obliged to receive it. And if you further find that at the time plaintiff boarded the Pulaski Heights car he knew that the transfer ticket was invalid because it was stale, but that ho boarded said car intending to use it for his passage [not intending to pay his fare any other way], then the relation of carrier and passenger did not exist between plaintiff and defendant, and [if conductor and plaintiff engaged in an independent fight] railway company is not liable."

The words in brackets represent the modification which the court made to the request as it was asked by appellant. The court refused the request as presented, but modified and gave it in the manner indicated. Appellant objected to the ruling of the court in refusing its request as offered, and in making the modification.

In his opening argument to the jury counsel for appellee. used the following language: "Mrs. Goerner was a passenger on that car, and gave up one of these transfers; but, she being the wife of the plaintiff in this case and the law being that the wife can not testify for or against her husband, her mouth is sealed. We can not hear anything from her. Usually a woman makes a good witness; she is quick to see and notice details; it makes a deeper impression on her than anybody else." And in his closing argument counsel for appellee made use of the following: "Now, the conductor is not in the employ of the street car company any more, and you noticed when I asked 'What were you discharged for?' they said 'Oh, we object,' and I did not get to show and could not show why he got out."

Objections were made by appellant to the above remarks at the time, and the court was asked to exclude same from the jury. The court refused, and appellant saved its exceptions to the court's ruling.

The verdict was for $ 160. Judgment was entered accordingly, which this appeal seeks to reverse.

Reversed and remanded.

Rose, Hemingway, Cantrell & Loughborough, for appellant.

The first instruction was erroneous because (1) it made no exception as to a stale transfer. A regulation limiting the time within which a transfer ticket must be presented is a reasonable rule. Booth on Street Railways, par. 237; Nellis, Street Surf. Roads, 432, 440; Clark's Accident Law, par. 81, 82; 53 N.W. 793; 52 N.W. 802; 48 S.E. 339. (2) The printed conditions on the ticket were binding upon the plaintiff, and it was his duty to examine it. If he presented a stale transfer ticket, intending to ride thereon, the relation of passenger did not exist, and the conductor could lawfully eject him. 135 Mass. 407; 189 Ill. 384: 43 Ark. 529. And (3) the instruction made no exception as to a transfer ticket fraudulently obtained. 45 Ark. 246; 35 Am. Rep. 450; 67 F. 522; 185 Mass. 510.

Carmichael, Brooks & Powers, for appellee.

The objections raised by appellant to instruction No. 1 are fully met and overcome by the third and eighth instructions given by the court, which must necessarily be considered in connection with it. Even if appellee's ticket had been stale, the conductor could only use such force as was necessary to eject him, and was not authorized to beat and maltreat him. 62 Ark. 259; 75 Ark. 529; 67 Ark. 47. If he had been a willful trespasser, the conductor had no right to strike and beat him. 53 Ark. 48. See also 67 Ark. 399; Ib. 112; 66 Ark. 602; 65 Ark. 177.

WOOD J., HILL, C. J., not participating.

OPINION

WOOD, J., (after stating the facts.)

1. No objection was made and exception saved at the trial to the portion of the testimony of W. H. Rankin which appellant now urges as error. We will therefore not consider that question.

2. A street railway may make and enforce reasonable rules to facilitate its business, and to protect itself from fraud and imposition. So long as these rules are not inconsistent with the rights of the public to transportation over the company's road, and do not impose unnecessary and unreasonable burdens upon them, they will...