Moody v. Southern Ry. Co

• Decision Date: 20 January 1914
• Docket Number: (No. 5337.)
• Citation: 80 S.E. 911,14 Ga.App. 258
• Parties: MOODY v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

80 S.E. 911

14 Ga.App. 258

MOODY

v.SOUTHERN RY. CO.

(No. 5337.)

Court of Appeals of Georgia.

Jan. 20, 1914.

(Syllabus by the Court.)

1. Appeal and Error (719*)—Assignments of Error—Direction of Verdict.

"This court has no authority to decide whether the trial court erred in directing a verdict, when there is no specific assignment of error, either pendente lite, in the motion for new trial, or in the bill of exceptions, made upon such direction." Cole v. Illinois Sewing Machine Co., 7 Ga. App. 338, 66 S. E. 979.

[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. 296S-2982, 3490; Dec. Dig. § 719.*]

2. Carriers (§ 357*)—Ejectment of Passenger—Failure to Pat Excess Fare.

Where a passenger on a train of a railway company, without fault on its part, negligently fails to purchase a ticket at a station, where, under the rules of the Railroad Commission, a ticket must be purchased, he is liable to pay the carrier whatever sum in addition to the ticket rate may be charged under the rules of the Railroad Commission. If he fails to pay this excess rate upon demand, the carrier may lawfully eject him from the train. This is true although it appears that on previous occasions the carrier had accepted from the passenger the cash fare at the ticket rate, between the same points; it not appearing that at the time the passenger was ejected he did not have the excess fare, or that he was misled by the previous practice of the carrier into boarding the train with no more money than was necessary to pay fare at the ticket rate.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1928-1931; Dec. Dig. § 357.*]

Error from City Court, Polk County; F. A. Irwin, Judge.

Action by Henry Moody against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

I. F. Mundy, of Rockmart, and W. W. Mundy, of Cedartown, for plaintiff in error.

Maddox, McCamy & Shumate, of Dalton, and Jno. L. Tison and Bunn & Trawick, all of Cedartown, for defendant in error.

POTTLE, J. The plaintiff in error sued the railway company for damages, and after the conclusion of the evidence at the trial the court directed a verdict against him. He filed a motion for a new trial, based solely on the general grounds that the verdict was contrary to law and evidence. From the evidence it appeared that the plaintiff boarded the train of defendant at Rockmart to go to Aragon, a distance of four miles. The ticket fare was 10 cents, but, under the rules of the Railroad Commission, where, in consequence of the want of reasonable diligence on the part of the passenger, a ticket is not purchased, the carrier is permitted to collect 25 cents cash fare. The plaintiff failed to provide himself with a ticket, without fault on the part of the defendant, and refused to pay the excess fare. Thereupon the train was stopped, and he was quietly ejected therefrom; no more force being used than was necessary to accomplish the purpose. The plaintiff bases his right to recover upon the theory that the carrier had previously accepted from him and other passengers 10 cents as cash fare from Rockmart to Aragon, and that he had no notice that this custom would be departed from at the time he boarded the train. The plaintiff testified that the defendant's ticket collector accepted from him the 10 cents fare which he tendered, and never returned it, though he admits it was tendered back to him.

1. "This court has no authority to decide whether the trial court erred in directing a verdict, when there is no specific assignment of error, either pendente lite, in the motion for new trial, or in the bill of exceptions, made upon such direction." See Cole v. Illinois Sewing Machine Co., 7 Ga. App. 338, 66 S. E. 979, and cases cited. In the case just cited, the writer of this opinion, representing the plaintiff in error, found himself in the same difficulty which confronts counsel for the plaintiff in error in the present case. The writer then insisted that an assignment of error that "the verdictwas contrary to law and without evidence to support it" was sufficient to require a decision upon...