Milroy v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 14 May 1896
• Citation: 67 N.W. 276,98 Iowa 188
• Parties: PETER MILROY v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

67 N.W. 276

98 Iowa 188

PETER MILROY v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 14, 1896

Appeal from Delaware District Court.--HON. FRED O'DONNELL Judge.

ACTION at law, in which plaintiff seeks to recover damages for being wrongfully ejected from one of defendant's trains. Trial to a jury, and judgment for plaintiff, and defendant appeals.

Affirmed.

A. L Bartholomew, Bronson & Carr, and W. J. Knight for appellant.

Welsh & Welsh, Yoran & Arnold, and Powers, Lacy & Brown for appellee.

OPINION

DEEMER, J.

Plaintiff is a stock shipper, and in the year 1887, resided at Hopkinton, in Delaware county. In September of that year, he shipped two cars of stock from the place of his residence over defendant's line of road, to the town of Defiance, in Shelby county,--a point a considerable distance west of the town of Hopkinton. A stock contract was issued by the defendant to the plaintiff, which provided for the transportation, of the stock to its destination, and also provided for the free passage of one man going with the stock to the place of its destination, and returning to the point from which the shipment was made. The material parts of the contract are as follows: "From Hopkinton, Iowa to Defiance, Iowa.

"Parties actually in charge of and accompanying within-named stock, must write their own name in ink here.

"Peter Milroy.

"* * * The above named is entitled to return pass Defiance to Hopkinton, Iowa.

"S. W. WHEELER, per A."

It seems that defendant had two lines of road from Hopkinton to Defiance,--one via Monticello, Anamosa, and Paralta, and the other via Monticello, Oxford Junction, Martelle, and Paralta. The following diagram will best explain the situation:

[SEE DIAGRAM IN ORIGINAL]

The route from Hopkinton to Paralta, via Anamosa, is twenty-six and six-tenths miles shorter than the one by way of Oxford Junction. The cars containing plaintiff's stock (he being with them) were taken by way of the Anamosa route; and on the third day of October, 1887, the plaintiff left Defiance, to return to Hopkinton, taking a through train destined from Council Bluffs to Chicago. About sunrise next morning he reached Marion, and instead of there changing cars, and taking a train destined from Cedar Rapids to Monticello, he continued on the Chicago train, and rode on through Paralta, intending to get off at Oxford Junction, and there take a train to his home. Shortly before the train reached Martelle, a station a few miles east of Paralta, the conductor of the Chicago train asked plaintiff where he wished to go, and called for his ticket. In response to this, plaintiff stated his destination and produced his stock contract. This the conductor refused to recognize, and he demanded of plaintiff the regular fare from Paralta to Oxford Junction. Plaintiff refused to accede to the demand, and was ejected from the train at Martelle. After remaining at Martelle for about thirty minutes, he boarded a west-bound train, arrived at Paralta in a short time, and there alighted, and took the regular Cedar Rapids train, via Anamosa, for his destination. He reached Monticello an hour or two later than if he had been permitted to go via Oxford Junction, as he had intended. This action is brought to recover damages sustained by reason of the ejection of plaintiff from the Chicago train. It is claimed by the plaintiff that he had the choice of routes on his return pass, and that the conductor of the Chicago train wrongfully ejected him, that the conductor used more force and violence than was needed to eject him from the train, and that by reason thereof, he has been seriously and permanently injured. The defendant, in answer, claimed that it had the right to eject plaintiff from its train (and that it used no more force than was necessary in so doing), for the reason that it was plaintiff's duty to return by the route over which he went; that, under his contract, it was his duty to get off the Chicago train at Paralta, or at some point west of that; and that he was wrongfully on the train after it passed Paralta. On the issues so joined, the case was tried to a jury, which returned a verdict for plaintiff in the sum of one thousand dollars. The lower court reduced the amount to six hundred and sixty-six dollars, and for that sum rendered judgment. The court instructed the jury, in substance, that, while the return pass did not name the route over which plaintiff should return, yet it was his duty, in the absence of proof of custom or usage to the contrary, to take the shorter route, and return via Anamosa. But it also said, that if defendant, by general usage and custom, permitted persons holding tickets, or stock contracts, such as plaintiff had, to go over either route, without extra charge, then such usage or custom became a part of the contract, and plaintiff was justified in going by way of Oxford Junction, and the defendant had no right to put him off the train. Other instructions were given, with reference to what evidence was necessary to sustain this custom and usage, to some of which we will hereafter refer. These instructions, to which we have specifically referred, were not excepted to, and they, therefore, became the law of the case.

It is said by appellant, (1) that there is no such issue presented; (2) that there is no sufficient evidence to establish any such custom or usage; and (3) that, if it ever existed, it did not enter into plaintiff's contract, because he had no notice thereof.

Now, without setting out plaintiff's numerous pleadings, it is sufficient to say, that we think he did plead a custom, and that evidence to establish it was properly admitted.

As to the appellant's second contention, it is well to look first to the instructions given by the court, with reference to the subject of usage and custom, before considering the evidence introduced to support it. These were as follows "(12) By the term 'general custom,' is meant the general way of doing some particular thing,--the usual way of doing such thing. To establish a general custom in reference to any particular thing, or way or manner of doing such thing, it must be made to appear from the evidence that such custom was generally and uniformly extended to all persons, under like circumstances and conditions, and that the same is notorious; that is, well understood. So if, in the case at bar, it does not appear from the evidence that all persons holding tickets or passes from points west of Paralta to Hopkinton, were allowed to take their choice of line, either by Anamosa or Oxford Junction to Hopkinton, then the general custom in question in this case is not established." "(25) A custom or usage governing a question of legal right cannot be proved by isolated instances, but should be so certain, uniform and notorious that it must probably have been understood by the parties as entering into the contract. The burden is upon the plaintiff to prove that such a custom existed, by a preponderance of testimony; and, if you should find that he has failed to establish such a custom by a preponderance of testimony, then, upon that branch of the case, you should not consider it further as having any bearing upon the case, in making up your verdict." Neither of these instructions were excepted to, and they will be treated as a correct exposition of the law. It is to be observed, in passing, that the parties and the court below used the words "custom" and "usage" as synonymous, and not according to their strict legal meaning. Technically speaking, there is a wide distinction between a usage of trade and a common law custom; for a custom is something which has, by its universality and antiquity, acquired...