Louisville & N.R. Co. v. Crick

• Decision Date: 17 May 1928
• Docket Number: 8 Div. 18
• Citation: 117 So. 167,217 Ala. 547
• Parties: LOUISVILLE & N.R. CO. v. CRICK.
• Court: Alabama Supreme Court

117 So. 167

217 Ala. 547

LOUISVILLE & N.R. CO. v. CRICK.

8 Div. 18

Supreme Court of Alabama

May 17, 1928

Appeal from Circuit Court, Limestone County; O. Kyle, Judge.

Action for damages by Leola Crick, suing by her next friend, Oliver H. Crick, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed conditionally.

Sanders & Woodroof and J.G. Rankin, all of Athens, for appellant.

Watts &amp White and R.E. Smith, all of Huntsville, and Fred Wall, of Athens, for appellee.

THOMAS J.

Counts 1, 2, and 3 of the complaint allege that defendant was operating a railroad through certain points, between Decatur and Calera, was a connecting carrier with the Southern Railway Company at Decatur; that plaintiff purchased a round trip ticket from Huntsville to Montevallo and return; that the ticket entitled her to passage from Calera to Decatur on the defendant's train, which she boarded at Calera, and the conductor wrongfully ejected her from said train against her will. The gist of the wrongful conduct charged in each of these counts was that she had a proper ticket entitling her to transportation, and was wrongfully ejected by the conductor, and damaged as alleged.

Plaintiff amended her complaint by adding count No. 4, alleging that defendant was operating a railroad, was a connecting carrier with the Southern Railway Company at Decatur; that plaintiff purchased a ticket from the Southern Railway Agent at Huntsville, applying to said agent for a ticket which would entitle her to transportation over defendant's railroad from Decatur to Calera, and return to Decatur from Calera the ticket being a round trip ticket from Huntsville to Montevallo; that the said agent negligently failed to properly fill out the ticket so that it would entitle her to transportation over defendant's railroad. The cause of action in this count being based on the negligence of the ticket agent in not properly filling out the blank line on the ticket, and as a result of which caused her ejection from the train, and she averred that she was damaged as claimed. The defense was the general issue.

On the trial of the cause it was shown that defendant did operate a railroad between Decatur and Calera; was a connecting carrier with the Southern Railway Company; had reciprocal agreements as to passengers, etc., and on the same day recognized and honored tickets issued by the agent of the Southern Railway Company at Huntsville. On her return, plaintiff boarded defendant's passenger train No. 2, at Calera, with a companion, and they presented the defendant's conductor the two tickets issued by the Southern Railway Company on a printed form of the Southern Railway Company, one coupon which purported to entitle the holder to transportation "from Calera to Decatur, Ala., via ______"; that the conductor informed plaintiff and her companion that they were on the wrong train, stopped the train about a half mile from Calera, and told said passengers to walk back to the station. It was a disputed question of fact whether plaintiff voluntarily left the train, or whether she left under compulsion by the conductor--the plaintiff testifying that the conductor told them that they would have to get off. The ticket was issued at Huntsville and presented to the conductor on return; was marked, "Destination, Huntsville and return."

The plaintiff was allowed to prove, over the objection of defendant, that the conductor was informed that plaintiff had ridden from Decatur to Calera on said ticket that was honored by the defendant; that its ticket agent at Calera had seen the return ticket and directed her, in response to request, to take the train on which she was riding; that the conductor ejecting her did not demand a cash fare; and after the train arrived and passed through Birmingham said conductor told one of the witnesses he had put plaintiff and her companion off of the train north of Calera, and did not know whether there was any other train by which they could travel from thence to Huntsville that day. The agent for defendant at Calera denied that he saw said tickets (in the first instance) or directed the holders thereof to get on train No. 2; that they did later (on the same day) present the tickets to him, issued by the Southern Railway Company, and he took them up and issued others in lieu thereof and on which plaintiff proceeded to Decatur. The interrogatories, taken under section 7764 of the Code, contained the further account of the occurrence, as follows:

"Shortly after said train No. 2 left Calera, A.B. Dabbs, conductor of said train, went back through the coaches collecting the tickets, and he came to two girls who had tickets to Huntsville, Ala.; that said tickets were not routed via the L. & N. Railroad Company; that the said Dabbs told the two girls that they were on the wrong train; that the said girls said, 'Yes; they told us our train left at 12:15 p.m.;' that the said Dabbs then pulled the train down and let the girls off near the water tank about one-half mile north of the station at Calera. ***

"The plaintiff presented a ticket from Calera to Hunstville, Ala.; that said ticket was not routed via the L. & N. Railroad Company, and that after conversation, as reported in answer to interrogatory No. 5 (a), defendant's conductor pulled the train down and let plaintiff off about one-half mile north of station at Calera. ***

"The agent on duty at Calera, Ala., G.M. Long, as above stated, exchanged tickets with plaintiff when she had walked back to the station at Calera, Ala., after getting off of defendant's train No. 2, as above stated; taking from the said plaintiff a ticket issued by the Southern Railway Agent at Huntsville, Ala., which, as aforesaid, was not routed via the L. & N. Railroad, and giving her therefore a ticket to Decatur, Ala., routed via the L. & N. Railroad Company."

The evidence also tended to show that plaintiff was compelled to walk about a mile to the station, carrying her luggage; the weather was warm; the railroad track rough; she became frightened and was delayed in reaching her destination; her shoes were damaged; that she suffered physical pain.

The jury returned a verdict in favor of plaintiff for $1,500, and, on motion to set aside the verdict and grant a new trial, the court ordered the verdict set aside and a new trial granted, unless plaintiff remitted all damages over $1,000, and if said remittitur was filed, then the motion for a new trial was overruled. Plaintiff filed the remittitur.

There was some evidence of aggravating circumstances as to the place the young girls were put off or that plaintiff was humiliated; and evidence (or the inference) that the conductor was acting in good faith in putting plaintiff off and for the purpose of correcting the error of plaintiff in getting on what he termed the wrong train. The conductor's account is as follows:

"My train got to Decatur on time that day and made connection with the Southern; the Southern leaves Decatur for Huntsville at 3:15; I said to these girls, 'Ladies, you are on the wrong train;' I told them that they were on the wrong train and would have to get off; that they were on the wrong train and they would have to go back and get on the Southern train; I saw that they were two young girls; I was routing them correctly; they were on the second day coach; *** I did not ask these young ladies to pay cash fare; if it had been an L. & N. ticket I would have let them ride; I did not ask them to pay any cash fare; I did not question them about where they had been; I knew they had got on the train; I didn't see on the tickets that they had ridden to Montevallo and were on their way to Decatur; I didn't see then on the tickets, 'Destination, Montevallo and return;' I see that now; I saw that it was on a Southern ticket form; I have honored many a ticket on a Southern form, round trip tickets sometimes; I did not know that Mr. Wilson was agent for the Southern Railway at Huntsville; I stopped these young ladies so that I could direct them right; there was no woods there; it is not far from the station; I did not call on these girls to pay any cash fare."

The court charged the jury, to which exceptions were taken to the oral charge, as shown by the bill of exceptions, as follows:

"During the course of the oral charge in

this case to the jury, the court instructed the jury as follows:

"I charge you that if you find from the evidence, to your reasonable satisfaction, that she was directed by the authorized agent of defendant at Calera to take that train, and if the L. & N. Railroad Company accepted her on that ticket from Huntsville to Montevallo, if on its face it purported to be a return ticket, then, gentlemen, she had a right to return thereon as a passenger on said ticket, and if defendant before that had recognized the ticket as being valid by transporting her as a passenger thereon to Montevallo, then the conductor had no right to eject her from said train.'

"The defendant, before the jury retired, reserved an exception to the above-quoted portion of the court's oral charge.

"During the course of the oral charge by the court to the jury the court instructed the jury as follows:

" 'Although this ticket on its face had "via _____" thereon, if it had been accepted previously by the defendant railroad company as a valid ticket, then, gentlemen, the defendant would be estopped from saying that on the 17th day of April, she never had the right to ride thereon from Calera.'

"Before the jury retired to consider their verdict, the defendant reserved an exception to the above-quoted portion of the court's oral charge."

It may be said that before a passenger is...