Memphis & C. R. Co. v. Benson

• Decision Date: 01 January 1887
• Citation: 4 S.W. 5
• Parties: MEMPHIS & C. R. Co. <I>v.</I> BENSON.
• Court: Tennessee Supreme Court

4 S.W. 5

MEMPHIS & C. R. Co.

v. BENSON.

Supreme Court of Tennessee.

__, 1887.

Appeal from circuit court, Shelby county.

Poston & Poston and L. W. Humes, for plaintiff in error. Wright & Folkes, for defendant in error.

LURTON, J.

This was a suit for damages for an alleged unlawful ejection of the defendant in error from the train of the plaintiff in error. There was a judgment of $500 in favor of the defendant in error rendered by the circuit judge, who tried the case without a jury. The railway company have appealed, and a number of reasons are assigned for reversal. The defendant in error went upon the passenger train at Memphis, Tennessee, and went into the car set apart for ladies, and gentlemen traveling with ladies. This car at the time was overcrowded, and he was unable to obtain a seat, and this condition of things he saw before the train left Memphis; yet he made no demand at Memphis, the terminal station, but, preferring to take his chances to get a seat, he remained on the car, standing until after the train had started upon its trip. After the train had gotten well out of Memphis, the usual demand was made upon him for his ticket. This he declined to surrender, taking the position that he would not surrender his ticket until he had been furnished with a seat. The conductor called his attention to the fact that there was not a vacant seat in the car in which he was, and offered to get him a seat in the next forward car, and further saying that it would be but a short time before seats would be vacated by passengers for local stations, and that he would then give him a seat in the ladies' car. This he declined, and demanded a seat in the ladies' car before surrendering his ticket. The demand of the conductor for his ticket was renewed in a short time, with the statement that he must either get off the train or surrender his ticket. This demand was again refused, and he further declared that he would not leave the train. Upon the train stopping at the next regular station, he still refusing to leave the train, he was ejected. He neither surrendered his ticket to the conductor, or showed that he had such ticket; nor did he state the point to which he was destined. He bases his refusal to go into the forward car upon the ground that it was a smoking car, and that the foul air of such a car was likely to make him ill.

There can be no doubt that the contract of a carrier of passengers by railway is one not only to furnish the passenger with transportation, but with the comfort of a seat. The contract is no more performed by furnishing him with a seat, without transportation, than it is when he is offered transportation without a seat. It is equally well settled that the passenger need not surrender his ticket until he is furnished with a seat, for the ticket is the evidence of the contract which entitles him to one. But it cannot be that one may ride free because not furnished with a seat. If the passenger chooses to accept transportation without a seat, he must on demand pay his fare. If unwilling to ride without transportation is furnished him in a seat, he must get off at first opportunity, and by so doing may bring his action for breach of contract, and recover as damages such sum as will compensate him for such breach, including such damages as are the natural and immediate results of such breach. Rorer, R. R. 968, 969; Davis v. Railroad Co., 53 Mo. 317; Railroad Co. v. Leigh, 45 Ark. 368. It results that for the indignity and vexation consequent upon the ejection in this case there can be no recovery. This result is made the more certain by the facts of this case; it appearing that, at the time this...