Louisville & Nashville R.R. Co. v. Garrett

• Decision Date: 31 December 1881
• Citation: 76 Tenn. 438
• Court: Tennessee Supreme Court
• Parties: Louisville & Nashville Railroad Co. v. Garrett.

76 Tenn. 438

Louisville & Nashville Railroad Co.

v.Garrett.

Supreme Court of Tennessee.

December Term, 1881.

FROM DAVIDSON.

Appeal in error from the Law Court of Davidson County. J. C. GUILD, J.

ED. BAXTER and SMITH & ALLISON for Railroad Co.

BATE & WILLIAMS for Garrett.

FREEMAN, J., delivered the opinion of the Court.

This action is brought to recover damages for being “wrongfully, wantonly and maliciously ejected from defendant's cars, whereby the party was greatly injured,” etc., as appears by the first count of the declaration. We need not consider any question arising on the second count, averring the tender of a tax receipt in payment of the fare, as the circuit judge ruled in favor of the defendant on that count, holding the tender not good, and the verdict of the jury is evidently based on the first count alone.

A preliminary question is presented as to exceptions taken to reading the deposition of Sandy Barnes, which was offered by the plaintiffs as testimony in the case. The first exception is, because in the caption of the deposition it appears that it was taken in a case pending in “the Law Court of Davidson county, Tennessee,” when in fact the title of the court is the “Law Court of Nashville.” We need only say, that this objection is one that “sticks in the bark.” The Law Court of Nashville is a law court, and the only one in the county of Davidson. There is nothing in this, nor is there anything in the other objection, that it does not appear from the caption or deposition itself, whether the plaintiff or defendant or counsel were present. In other words, nothing is said on this subject. We do not think this in any way affects the deposition. Being taken on interrogatories filed, the inference is that they were filed to obviate the necessity of counsel being present; nor do we see that it would have affected the competency of the deposition, if these parties had been merely present--it being otherwise regular. The caption and certificates substantially conform to the requirements of the statute, and that is what is required by sec. 3848 of the Code.

The real questions in the case, however, arise on the charge of his Honor, the circuit judge, on two propositions. First, as to the offer to pay the fare by a third party when demanded by the conductor, for which the plaintiff was put off the train; and, second, on the subject of vindictive or punitive damages.

A brief summary of the facts will be sufficient to present these questions. About the 10th of August, 1871, plaintiff got on the train in Edgefield, near the city of Nashville, to go to Gallatin, in an adjoining county. He had no money, but had a certificate of payment of a tax to the Davidson county tax collector, of a tax levied for the benefit of the defendant railroad company. This tax certificate was for some cents more than the fare. The testimony is uncontradicted, and no suspicion thrown over its truthfulness, that the plaintiff in good faith believed this certificate would be received in payment of his fare. He had traveled over the Edgefield & Kentucky road, and paid his fare with like certificates. He swears positively that he did not get on the cars with the purpose of making a case to test the question of the liability of the road to take such certificates, and his statements are corroborated by the fact that he was poor, had probably but this one certificate on the road, and was not likely to have been a man to have engaged in such litigation.

There was no ticket office where he got on the train, that he might have tested whether his certificate would be received before going on the train, but it was the customary point for passengers from Edgefield to get on trains.

After going over two miles, the conductor came into the car where he was, collecting fare of passengers and taking up tickets. When he reached plaintiff, he tendered him the tax certificate, which the conductor refused, saying to him he must pay $1.10, the fare, or he would put him off the train. He told him he had no money, and that he was sick, and urged him to take him to the next station, a few miles on, where he could get the money from friends and pay him. The conductor then took hold of him, either by the coat collar or arm, and walking rapidly with him along the car to the door after ringing the bell to stop the train--as he opened the door a passenger, as he says, “from motives of humanity,” said to the conductor “let him go back, I will pay his fare.” The weight of the proof is, that the conductor replied it is too late, and passed on to the platform, leading or having plaintiff in front of him. As plaintiff got on the steps the train jerked and he fell off on some loose rocks, slightly hurting his hand and giving him something of a shock, though doing him no serious injury.

The plaintiff was upwards of sixty years old and very feeble, while the conductor was a large, stout, robust man. We may assume the fact to be that the conductor heard the proposition of Williams to pay the fare, not only from the fact that witnesses say it was spoken loud enough to be heard over the car, and was so heard by several farther from the speaker than he was. It was addressed to him, and therefore more likely to be heard by him. But what makes this a conclusive assumption is, that he was present in court, summoned as a witness, and was not examined by defendant to contradict any statement of the facts as given by the plaintiff or his witnesses.

From this proof we gather, that the jury were warranted in finding that the plaintiff was rudely seized, though not roughly enough to injure him, and expelled from the cars by such force as we have indicated, when he had not in the slightest degree refused to get off, nor made any resistance to the act of the conductor, and in fact was totally unable to have done so. The weather was exceedingly warm, and he must in his enfeebled condition have felt it keenly in walking back, as he was compelled to do, to his home.

On these facts we assume the party was properly on the cars, so far as his motives and good faith were concerned. Having been under a wrong impression as to the use of the certificate in paying his fare, he was bound to pay his fare, or at any rate unless this payment was made to the conductor, he might properly have been put off the train, and no liability would be incurred by so doing, provided it was done in a proper manner, and with no unnecessary rudeness, insult or injury. In other words, if the plaintiff got on the cars in good faith, in ignorance of the fact that his tax certificate would not pay his fare, with no intention to impose upon the carrier, he can not be treated merely as a trespasser in thus getting on the car: Hutchison on Carriers, 459. But on failure or refusal, after request, with reasonable opportunity allowed to comply, to pay his fare, he might be ejected or put off the cars by the conductor.

The fact of a party getting on a passenger car for the purpose of travel, of itself creates by operation of law a contract, or the law defines the terms of the contract, the obligations of which bind both parties. On the part of the carrier, among other things, the party is entitled to be carried with the care required by law, at the established rates and with no unnecessary delay. On the part of the passenger, he is bound as the first duty to pay, or offer, or be willing to pay his fare according to such reasonable regulations as may be established by the company. Payment, when demanded, is his duty. The receipt of the compensation is the right of the carrier, and this is a condition precedent, without the performance of which he is not bound to perform the service.

Railroads, being public carriers, are bound to carry all who apply, against whom there is no legal objection: Hutchison on Carriers, sec. 538. This duty is imposed by law, upon payment or offer to pay the fare required, or properly due for the service. And it is said--and we think correctly--that if a party in good faith get on a car, in disregard or ignorance of a regulation requiring a ticket before getting on, if ready and willing to pay the price of his carriage when demanded, could not be ejected from the cars because of...