McKay v. Ohio River R.R. Co.
| Decision Date | 24 June 1890 |
| Citation | 34 W.Va. 65 |
| Court | West Virginia Supreme Court |
| Parties | McKay v. Ohio River Railroad Co. |
Railway Company Conductors Passengers Tickets.
A railroad-conductor may demand a ticket as evidence of a passenger's right of passage, or on failure of the passenger to produce it may demand payment of fare, and on failure to pay it may lawfully eject the passenger from the train, using no more force than necessary. Railroad Company Passengers Tickets.
If a passenger pay a railroad agent fare for a certain trip, and by mistake of the agent is given a ticket not answering for that trip but one in an opposite direction, and the conductor refuses to recognize such ticket and demands fare, which the passenger fails to pay, ejection of the passenger from the train without unnecessary force will not be ground of action against the company as for a tort; but the action may and must be based on the breach of the contract to convey the passenger.
V. B. Archer of counsel for appellant cited: 81 W. va, 220; 71 Ill. 391; 17 W. Va. 190; 19 W. Va. 325; 27 W. Va 161; 66 A. M. Dec, 217; 96 N. Y. 305; 115 Mass. 304; 42 Wis. 28; 16 X Y. 489; 73 Ind. 568; 39 Me. 458; 7 Wis. Ill; 25 W. Va. 692; Id. 127; 64 Md. 68; 18 Am. & Eng. R. R, Cas. 339; 19 Ohio St, 157; 68 Mo. 329; 15 Fed. Rep. 57; 80 Fed. Rep. 904; 20 Am. Rep. 232; 34 Am. & Eng. R, R. Cas. 316; 40 Miss. 374; 11 La. Ann. 292; 57 Pa. St. 839; 53 Pa. St. 276; 48 N. II. 541; 18 Pac. Rep. 211; 74 la. 137; 31 W. Va. 220; 56 X. Y. 298; 87 Mich. 342; 68 111. 499; Thomp. Carr. 337, 338; 68 Mo. 593; 25 W. Va. 139; 78 W. Va. 782; Patt. R'y. Ace. Law 471; 91 IT. S. 495; 3 Wood R'y Law § 364; 84 Am. & Eng. R, R, Cas. 290; 135 Mass. 407; 26 Am. & Eng. R. R. Cas. 264; 2 Am. & Eng. R, R, Cas. 514; 16 Am. & Eng. R, R. Cas. 352; 18 Am. & Eng. R. R. Cas. 248; 6 Am. & Eng. R, R. Cas. 345; 36 Am. Rep. 303; Wood Mayne Dam. 74; 66 Miss. 14: 59 Tex. 563; 46 Am. Rep. 278; 66 Tex. 580; 135 Mass. 407; 37 Mich. 842; 84 Ill. 468; 53 Vt. 190; 41 Am. Rep. 305; Pierce R, R. 302; 6 'Nev. 224; 26 Am. & Eng. R. R. Cas. 190; Hill. X. Tr. (2nd Ed.) 410, 411; 3 S. W. Rep, 824; 1 Munf. 288; 53 la, 508; 91 111. 298; 48 K H.541; 29 Alb. L. Journ. 471; 37 Mich. 342; 56 N. Y. 295; 68 111. 499; 34 Md. 532; 29 Ohio St. 214; 36 Conn. 287; 42 K J. L. 449; 23 W. Va. 617; 36 Wis. 450; 15 X. Y. 455; 46 X. II. 213; 43 111. 420.
B. White of counsel for plaintiff in error cited: 9 Ex. 341; 28 'N. Y. 217; L. R. S. Ex. 67; 22 Ga, 269; 30 I Inn 377; 71 Ill.392; 53 Vt. 190; 62 Ill.315; Wood R'y Law 1288; 28 Ohio St. 126; 63 La. 417; 74 Mo. 147; 1 Gush. 452; 31 Mo. 243; 25 W. Va. 139; 61 Am. Dec. 494; 63 Am. Dec. 78; 90 Am. Dec. 382; 31 Mo. 243; 74 Mo. 147; 63 la, 417; 62 111. 315; 71 Ill. 392; 18 111.460; 65 Miss. 14; 31 W. Ya. 220; 18 W. Va. 301; 94 N 0. 318. J. 0. Pendleton for defendant in error cited: 64 Mich. 631; 55 111. 190; 123 Pa. St. 140; 64 Mich. 631; 67 Ill. 312.
This was an action of trespass on the case, in the Circuit Court of Ohio county, brought by Winfield S. MacKay against the Ohio River Railroad Company, resulting in a verdict and judgment for the plaintiff"for five hundred and thirty nine dollars and seventeen cents, to which judgment this writ of error was granted on the petition of said company.
An inspection of the declaration raises: the question, whether it states a cause of action ex contractu or ex delicto; whether it is in assumpsit on a contract for transportation, or for tort for the ejection of the plaintiff from a car. It avers that the defendant company undertook and promised for certain hire and reward paid to it to safely and securely convey the plaintiff in its ears from the town of Ravenswood to Wheeling and hack again to Ravenswood, and that the plaintiff confiding in such promises and undertaking of defendant did take a seat as a passenger in the defendant's car and was conveyed to Wheeling, and that afterwards still confiding in such promise and undertaking of the defendant he took a seat as a passenger in one of its ears to be conveyed back from Wheeling to Ravenswood; but the defendant, not regarding its promise and undertaking, but contriving to injure the plaintiff, did not convey him from Wheeling to Ravenswood but neglected and refused so to do. Thus far the declaration seems to be based on the contract of conveyance made by the defendant as a carrier with the plaintiff. But it then immediately avers that, instead of so conveying the plaintiff, the defendant by its servants violently and with great force caused the plaintiff against his will and protest to be ejected from said car, and to be pushed and hurled from it upon the ground, and to be prevented from going to Ravenswood on that day, by means whereof he was compelled to walk a long distance to a hotel, was greatly humiliated in his feelings and hurt in his pride by being exposed to other passengers on the car, and was compelled to remain in Wheeling from his business and home, and to pay hotel-bills, and spend three or four dollars for telegrams sent to his wife, to allay her uneasiness on account of his failure to reach home when expected, and to spend money to purchase a ticket to reach home, and to borrow money for that purpose; and that his wife was ill, and her alarm from his failure to reach home when expected injured her, and protracted her illness, causing him to pay large medical hills and that his business was damaged by his detention from home, and he sustained numerous other injuries, to his damage ten thousand dollars. The most of this matter relates to the tort of ejecting the plaintiff from the cars, and looking to that as the cause or gravamen of the action.
The declaration thus contains matter based on the contract and matter based on the tort; and it is somewhat difficult to say whether it aims to state the breach of the contract to convey, or the tort in ejecting him from the car as the gravamen of the action. Rut it cannot be treated as double in nature. It must be classed either as an action ex contractu or ex delicto. The writ summons the defendant to answer an action of trespass on the case, and the declararation denominates the action as trespass on the case; and I conclude to regard the statement of the contract of conveyance as a passenger as matter of inducement explanatory of the reason of the plaintiffs presence on the car, and the ejection of the plaintiff from the car with force and arms as the gravamen of the action, and shall treat the action as trespass on the case. This classification of the action is necessary in passing on the motion to exclude the plaintiffs evidence; for, if we regard the declaration as in assumpsit, the evidence would go to sustain the action, ami the motion to exclude it would consequently be overruled, but, if we regard it as in case, the evidence is not sufficient to sustain the action, and the motion to exclude it should have been sustained.
The plaintiff's evidence shows that he purchased from the defendant's agent at Ravenswood what was regarded a round-trip ticket from Ravenswood to Wheeling and return, and paid seven dollars and thirty-five cents for it, and under it went to Wheeling, and, when he started to return to Ravenswood, found that his ticket was stamped on each end from "Ravenswood to Wheeling" instead of being stamped as it should have been, on one end for passage from Ravenswood to Wheeling, and on the other from Wheeling to Ravenswood; that lie did not notice the mistake, when he purchased the ticket, and first noticed it when he boarded the train at Wheeling to return to Ravenswood. The conductor on the train to Wheeling tore off one end or coupon of the ticket, and when, on his return, the plaintiff presented his ticket to the conductor, he refused to receive it because it called for a passage from Ravenswood to Wheeling, not from Wheeling to Ravenswood, and said to plaintiff: and the plaintiff replied, "Til be damned if I do." The conductor pulled the bell-rope to stop the train; and, as the train was stopping, plaintiff asked the, conductor what was the matter with the ticket, and he said it was not good. The plaintiff informed him that he had come up on it the day before with Conductor Patrick; and the conductor, Rice, then said, "He gave you the wrong end," and said, further, "You will have to pay your fare," Plaintiff then said to him that he had no money, and that, if the conductor had given him the wrong end of the ticket, it was a mistake, ami it did not cost any more to take him back than to bring him up, to which Conductor Rice replied, "It don't make a damned bit of difference," and that plaintiff must, pay fare or get, off. When the train stopped, the plaintiff said: "If I get off here, somebody will have to pay for it. 1 want to get home on this train." Plaintiff says he then got off the train down upon the street in the city of Wheeling. He further says: "Of course the passengers could not hear what was said between the conductor and myself, and they did not know what I was put off for."
There is no act of tresspass shown by tins evidence. There is not the slightest evidence of force or violence used by any of the defendant's employes upon the plaintiff. lie was not, as alleged in the declaration, violently and with great force ejected and pushed and hurled from the car, but walked from it himself, without the slightest battery or assault upon his person. He does not himself say so, and other evidences make it quite clear that no force or violence was used. The evidence does show a breach of the company's contract to convey the plaintiff as a passenger, or an agreement to sell a different ticket, but not a trespass, for which an action based on a tort can be maintained. It is simply the case of a refusal and failure to carry out its contract of conveyance, for which an action of trespass on the case in assumpsi...
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