Little Rock Traction & Electric Company v. Trainer

• Decision Date: 21 April 1900
• Citation: 56 S.W. 789,68 Ark. 106
• Parties: LITTLE ROCK TRACTION & ELECTRIC COMPANY v. TRAINER
• Court: Arkansas Supreme Court

56 S.W. 789

68 Ark. 106

LITTLE ROCK TRACTION & ELECTRIC COMPANY v. TRAINER

Supreme Court of Arkansas

April 21, 1900

Appeal from Pulaski Circuit Court, First Division, ROBERT J. LEA Judge.

Judgment reversed and cause remanded.

Rose Hemingway & Rose, for appellant.

It was error for the court, to give the first instruction asked by plaintiff, and to modify the seventh and ninth asked by defendant. The conductor could not waive the requirement of the company's rule that passengers should obtain transfer tickets. 64 Tex. 144; 92 Pa.St. 21; 11 So. 506, 511; 13 S.W 19; Booth, St. Rys. § 237; 93 Mich. 612; 52 F. 197; 34 W.Va. 65; 21 Ore. 121; 135 Mass. 407. There is nothing stated contrary to this principle in 65 Ark. 181; 143 U.S. 60; or 68 Miss. 165. As appellee gave another reason in explanation for her not asking for a transfer, she cannot now excuse it on the new ground that the conductor led her to believe it unnecessary. 96 U.S. 258; 45 Ark. 40; 57 Ark. 632. Knowing the rule as to transfers, she would not fail to obtain one, and then obtain damages for incorrect information. 17 P. 54, 59; 47 Ark. 74. The evidence did not warrant any damages.Mere words are not actionable. 17 N.Y. 54; 64 Ark. 538.

J. H. Hamiter and T. J. Oliphint, for appellee:

The actions of the conductor were tantamount to an expulsion, and appellee was entitled to damages for the humiliation suffered by her. 65 Ark. 177; 43 Ark. 535; 43 L.R.A. 707. The damages were not excessive.

OPINION

BUNN, C. J.

This is a suit for damages for injury suffered by plaintiff, by reason of the rough and uncouth conduct of one of the street car conductors of defendant, and manifest indifference to her rights, exhibited by him towards her while a passenger on his car some time in June, 1897. Damages laid at $ 5,000. Trial by jury, and verdict for $ 200, and defendant appealed.

The evidence shows that plaintiff boarded one of the street cars of defendant at Fifth and Main streets, intending to go on Main and West Markham to Cross street; and the plaintiff's evidence showed that on boarding the car she asked the conductor if that car went to West Markham, or was for West Markham, and, being answered in the affirmative by him, she paid her fare, but that, on arriving at Markham street and turning the corner, the car was stopped in front of the Metropolitan Hotel, when and where the conductor informed her that his car would go no further, but that an approaching car indicated to her by him would take her on West Markham. It does not appear that anything else was said by the conductor or by the plaintiff, and the latter got off the first car and stood on the street or side walk in front of the Metropolitan Hotel until that car moved back out of the way, and the second car moved up and took its place, when plaintiff boarded that one; and it proceeded on West Markham until, somewhere between Center and Spring, the conductor came around and demanded his fare of plaintiff, who refused to pay the same, informing him that she had paid her fare on the car from which she had alighted as stated. He informed her that she would have to pay or get off, and after some other words he informed her that he would see that she was put off if she would not pay her fare, and, this being refused, he ran the car back to police headquarters, and called to his assistance a policeman; but nothing was done by the latter, as the chief of police appeared on the scene at this time, and asked the plaintiff what was the matter, and, on being informed by her, he paid the plaintiff's fare to the conductor, and the plaintiff and conductor boarded the car and proceeded on their way without further trouble. The conductor on the first car testified that he had no conversation with plaintiff as to the running of his car, except at the intersection of Maine and Markham as detailed by plaintiff. The conductor on the second car denies all rudeness of conduct toward the plaintiff, and that he did any thing more than he was required to do in a case where a passenger refused to pay fare or present a transfer ticket. The plaintiff's evidence tends to show that a considerable crowd had gathered at police headquarters, and that she was thus made the object of their gaze and attention, to her great humiliation. Nothing very definite is shown as to the numbers so collected together, and nothing as to their conduct. Plaintiff herself testifies that the conductor on this second car almost disputed her word, but in what connection or in what respect she fails to state. There is much other evidence, but this as all that is necessary to rehearse at this juncture at least.

The court gave on its own motion several general instructions of the usual and merely formal kind, and at the instance of the plaintiff, the following, numbered 1, to-wit: "If you believe from the evidence that it was the rule or custom of the company to require a transfer ticket at the point at which plaintiff made the change, but you should further find that her entering the car without procuring a transfer ticket was the result of the negligent conduct of the conductor of the first car, and that the plaintiff, as a reasonably prudent person, had a right, under the circumstances, to assume from the conduct and statements of the first conductor that she would be carried on West Markham without such transfer ticket or further payment of fare, then she was entitled to be carried by the second car without further payment of fare."

The defendant asked nine several instructions based on its evidence and in support of this theory of the case, only one of which (the fourth, as to punitive damages) was given by the court. The others were refused, but afterwards the seventh and ninth were modified by the court, and then given as modified. They are as follows, with...