Louisville & N.R. Co. v. Watson
| Decision Date | 23 November 1923 |
| Parties | LOUISVILLE & N. R. CO. v. WATSON. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Boyle County.
Action by Josephine Watson against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions to grant motion for new trial.
Benjamin D. Warfield, of Louisville, and John W. Rawlings, of Danville, for appellant.
Bagby & Huguely, of Danville, for appellee.
On November 17, 1920, appellee and plaintiff below, Josephine Watson, was and had been for some time visiting her mother at Parksville, Ky. She was married, and lived with her husband at New Haven, Ky. a distance of about 60 miles from Parksville, and both places being located on the line of appellant and defendant, Louisville & Nashville Railroad Company. On the day named she purchased a ticket for herself for her return trip home, and boarded the defendant's train for that purpose in the early part of the afternoon with her infant daughter, aged five years and eight months. Shortly after the train left Parksville, the conductor approached plaintiff for her car fare, and she gave him her ticket. Upon inquiry he learned that the child was above the age (five years) for free transportation, and, under the rules of the company, was compelled to pay half fare. Plaintiff took issue with the conductor, and insisted that children were entitled to free transportation up to six years of age. Some discussion was engaged in, but the conductor went through the train, collected the fares of the passengers, and returned to plaintiff, and drew from his coat pocket the printed rules of the company, and took a seat in front of her, and endeavored to show her the rules of the company under which he was acting, and to explain to her his duties in the premises, but she knocked the pamphlet from his hands to the floor, and at that time another station was about to be reached, and the conductor left her and went into the smoking compartment of the coach in front. While he was in there the train arrived at the station of Brumfield, and when it stopped there the plaintiff took her grip, and walked out and disembarked with her child. The brakeman assisted her to alight, but informed her that it was not her destination. The agent at that place, who was present, took her grip, and at her request went with her to the house of a friend living near by, from which place her mother was notified, and within a short time some one came after her, and she was carried back a distance of eight miles to her mother's home where she remained some days, and returned to her home in New Haven.
She brought this action to recover damages for what she alleged was the wrongful ejection, which she fixed in her petition at the sum of $5,000. Her petition not only alleged that she was actually ejected at Brumfield by the defendant's conductor, and was compelled by him to leave the train at that point, but that he did so "wrongfully, willfully and maliciously," and in violation of her rights. By an amended petition she alleged that in approaching her the conductor did so in a rude, angry, and insulting manner, so as to greatly frighten her, and to cause her to suffer great humiliation and mental anguish by reason thereof, and that she suffered from the effects of the inclement weather, and was greatly inconvenienced because of the darkness of the hour, and in returning to the home of her mother. She further alleged in the amendment that the conductor did not tender or offer to tender to her the ticket which she had given him or the price thereof. Proper pleadings made the issues, and, upon trial, the jury, under the issues as submitted by the instructions, returned a verdict in favor of plaintiff for $1,000. Defendant's motion for a new trial was overruled, and from the judgment pronounced on the verdict it prosecutes this appeal, relying on numerous grounds for a reversal, chief among which are: (1) That the court should have sustained the defendant's motion for a peremptory instruction in its favor offered at the close of plaintiff's testimony, and at the close of all the testimony; and (2) that the verdict is excessive.
In support of ground (1) it is argued that an infant, for whose transportation the carrier is entitled to collect half fare, may be ejected from the train, if the one in charge of it (whether parent or other person) refuses to furnish a ticket or pay the fare, and that the latter's refusal to do so creates the right in the carrier to not only eject the infant but the one having it in charge, upon the grounds that the custodian of the infant impliedly agrees to pay its fare, and that the safety of the infant demands that it should not be put off alone or that the two should be separated; and the argument in the abstract seems to be supported by text-writers and adjudicated cases. 10 Corpus Juris, 733; Hutchinson on Carriers (3d Ed.) vol. 2, § 1025; Braun v. Northern Pacific Ry. Co., 79 Minn. 404, 82 N.W. 675, 984, 49 L. R. A. 319, 79 Am. St. Rep. 497; Warfield v. Railroad Co., 104 Tenn. 79, 55 S.W. 304, 78 Am. St. Rep. 911; Lakeshore, etc., Ry. Co. v. Orndorff, 55 Ohio St. 589, 45 N.E. 447, 38 L. R. A. 140, 60 Am. St. Rep. 716; P., C., C. & St. L. Ry. Co. v. Dewin, 86 Ill. 296, and other cases cited in the notes to those opinions. In each of those cases, however, where the facts presented the point, and the court's attention was directed to it, it was held that the person in charge of the infant could not be lawfully ejected, notwithstanding he refused to pay the latter's fare, unless the conductor tendered or offered to tender to him the remaining portion of the fare paid for his transportation, after deducting that part of it which had been consumed in transporting the two to the point of ejection, and that, unless such tender was made or offered to be made, the ejection would be wrongful. See, also, Hutchinson on Carriers, supra, § 1087; 5 R. C. L. 118; and 6 Cyc. 550. Defendant's counsel seem to concede the correctness of the latter proposition as an established principle of the law relating to carriers of passengers, but it is sought to be avoided in this case upon the grounds: (a) That under the proven facts plaintiff left the train at Brumfield on her own volition, and without the knowledge of the conductor that she intended to do so, and without an opportunity on his part to make the tender; and (b) that, under both the federal and state law now in existence, prohibiting a carrier of passengers from discriminating in favor of any of them as to transportation charges, it was the imperative duty of the conductor to eject plaintiff when she declined to pay the fare for her infant daughter, and that he could do so under such federal and state regulations without tendering or offering to tender the unearned portion of it.
Contention (a) is undoubtedly sound, unless plaintiff was justified in voluntarily leaving the train at any time and place most suitable to her convenience after the conductor stated to her that if she did not pay the fare for the child within 10 minutes he would be compelled to put her off, a fact to which she testified, but which he and other witnesses for defendant denied. Her right to do so at a time and place of her own choosing and in the absence and without the knowledge of the conductor and at the same time preserve her rights as a wrongfully ejected passenger is sought to be upheld by the text in 10 Corpus Juris, 752; 5 R. C. L. 114. 115; the cases of Georgia Railroad & Banking Co. v. Eskew, 86 Ga. 641, 12 S.E. 1061, 22 Am. St. Rep. 490; Boling v. St. Louis, etc., Railroad Co., 189 Mo. 219, 88 S.W. 35; and others cited in note 79 of Corpus Juris; and note 7, R. C. L. supra. But a reading of those references will show that they do not apply to the facts of this case, and are far from sustaining plaintiff's right to voluntarily leave the train at Brumfield under the proven circumstances without waiving her rights as a wrongfully ejected passenger. The text in Corpus Juris, relied on, says:
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