Moore v. D.C. & G. R. Co

• Decision Date: 18 November 1892
• Citation: 16 S.E. 781,38 S.C. 1
• Court: South Carolina Supreme Court
• Parties: MOORE . v. COLUMBIA & G. R. CO.

16 S.E. 781

38 S.C. 1

MOORE .

v.COLUMBIA & G. R. CO.

Supreme Court of South Carolina.

Nov. 18, 1892.

Ejection of Passenger—Failure to Pay Fare.

1. Where the statute allows a railway company to charge 25 cents additional to the regular fare if a passenger neglects to purchase a ticket, when the ticket office is open for half an hour preceding the arrival of a train, a passenger, on his refusal to pay such addition to the regular fare, is liable to immediate ejection from the train, whether or not he knew of such regulation, under Gen. St. § 1517, providing that "whoever does not, upon demand, first pay such toll or fare, shall not he entitled to be transported any distance."

2. A rule of the company providing that, in case a passenger fails to pay the fare demanded, it shall be the duty of the conductor to put him off at the next station, does not enter into the contract between the passenger and the company, so that the conductor cannot eject the passenger until arrival at the next station; for, as the passenger refused to consent to the regulations made by the company in regard to the transportation of passengers, no contract existed between the parties in respect thereto.

3. A person who enters a passenger coach as a passenger, and who, on demand by the conductor, refuses to pay his legal fare, becomes a trespasser on the train, and is considered a trespasser ab initio, as if his entry had been unlawful; and for his ejection force may he used, in proportion to his resistance.

4. If such passenger assaults the conductor, the conductor is not, by reason of his office, divested of his right of self-defense, hut he may meet force with force; and, if he injures the passenger while so doing, the jury are not required to nicely weigh the injuries, to see whether they were too severe, and the conductor is not subject to punishment unless the injuries are greatly disproportioned to the violence offered him, and unless they were inflicted wantonly or maliciously.

5. The conductor may remove a person refusing to pay his fare, from the train, at any point on the road, provided the place selected is not such as to work an injury to the party ejected.

G. A railroad company is liable for an injury resulting from the acts of the conductor only when such acts were committed while in the discharge of the service he owed the company.

7. It cannot be said the court charged upon the facts, because, after reviewing certain acts of the plaintiff, he stated to the the jury that he had "spoken of the unlawful conduct of the plaintiff in these three instances, " when plaintiff admitted the acts referred to, and there was no issue thereon, so that the court only stated to the jury the legal effect of such facts.

8. Where, in order to make clear to the jury the questions they have to determine, it is necessary for the court to present the testimony by way of summing it up, but he admonishes the jury, from time to time, during the charge, that all questions of fact must be solved by them, and that he could not legally do so, the manner of stating the testimony will not be considered error.

9. The fact that, in his review of plaintiffs testimony, the court spoke of plaintiff's shoulder being dislocated by his being thrown down an embankment after his ejection, whereas his testimony was that it was dislocated while in the car, by being thrown against the ladies' saloon, is not reversible error.

10. Where, after the court had finished his charge, plaintiff's counsel arose, and was in the act of addressing the court, when he was stopped by the judge with the remark, "I can't hear any argument, but if you have any request—" whereupon counsel said, "I have nothing more to say, sir, " it cannot be claimed, since counsel stopped so quickly, that the court prevented him from calling attention to alleged error in the court's statement of testimony to the jury, with a view to its correction; hut the counsel should have persisted, and then, if the court declined to make the proposed correction, there might have been reversible error.

Appeal from common pleas circuit court of Richland county; J. H. Hudson, Judge.

Action by David Moore against the Columbia & Greenville Railroad Company to recover damages for an alleged wrongful ejection from defendant's train. From a judgment for defendant, plaintiff appeals. Affirmed.

Andrew Crawford and Melton & Melton, for appellant.

J. S. Cotheau and B. L. Abney, for respondent.

Pope, J. This action came on for trial in the court of common pleas for Richland county, at the spring term of said court, in 1891, before his honor Judge Hudson, and a jury. The plaintiff complained of the defendant that on the 9th day of February, 1889, he was ejected from the railroad train operated by defendant at about one mile distant from Alston, in the direction of Columbia, after he had tendered to the conductor who had charge of such train the usual fare required of passengers for being transported between the stations of Alston and Wallaceville; that, in causing his ejection from such train by defendant's agent, he was brutally, wantonly, and mercilessly beat, bruised, and wounded, in a most shocking and cruel manner, without cause or provocation, and in violation of his rights. He demanded judgment for the sum of $10,000 and costs. The answer of the defendant consists of a general denial. The testimony for the plaintiff tended to establish that plaintiff, who resided near the station on defendant's road named Wallaceville, —a flag station, —had gone up to Alston, on defendant's road, on the morning of the 9th of February, 1889, on business, and on his return to Wallaceville, on that afternoon, he had entered the first passenger coach of defendant, and when the conductor, Mr. Hughes, had demanded his fare, he had offered him the sum of 15 cents therefor, — that sum being the amount he had paid in the morning, in going from Wallaceville to Alston, —-but that the conductor rudely refused to receive that sum, demanding 25 cents additional, but that the plaintiff refused to pay the additional sum, whereupon the conductor, in a rude, angry, and disrespectful manner, ordered him off the train. Conductor said, "Will you pay me the 40 cents, or get off the train?" He said, "I will not do it." Conductor said, "You get off the train." He said, "I will not doit." Conductor then said, "I will put you off, " and pulled the bell cord, and stopped the train. Then, after some words between the two, the conductor endeavored to lead him out, but he would not go. That ultimately the conductor, the. baggage master, and porter seized himrudely by the hands, feet, and body, and carried him out of the cars, striking his shoulder violently against the corner of the ladies saloon. This violent handling culminated in pitching him headlong down a bank some 10 or 12 feet; his shoulder striking the ground, and also his knee. That afterwards, in his efforts to get on board of the train a second time, his hand was mashed so that his thumb was broken That, in his effort to get on board a third time, his head was bruised and beaten by the conductor striking him with metal knucks. That, being left in this condition, by the aid of a colored man he was assisted to his home at Wallaceville, but after reaching that place he proceeded by a freight train to Columbia, in order to have medical attention. That the statement of the plaintiff as to the treatment he received after being ejected from the car was substantially corroborated by a colored man, King Franklin. Another witness on the train, George A. Setzler, confirmed his statement as to being struck by the conductor in his effort to get upon the train while in motion. The character of his bodily injuries was testified to by Dr. L. K. Philpot, Dr. Samuel W. Melton, Capt. J. L. Little, John Hardy, Thomas R. Davis. The plaintiff testified that his shoulder was dislocated, his thumb broken, and in consequence thereof he has never been able to do much labor since that time. For the defendant, the folio wing witnesses testified: L. D. Breneke, R. E. Nooe, L. J. Watson, D, S. Lambert, T. S. Moorman, who were passengers at the time; Conductor O. E. Hughes, Baggage Master Winn, —as to the details of the difficulty. These witnesses gave an entirely different version of what occurred. Substantially, they agreed in their statements, and these are about the facts testified to: That on the 9th February, 1889, when conductor, in a polite and proper manner, called for the ticket of the plaintiff, he was informed by him that he had purchased no ticket, but offered to pay 15 cents for his passage on the train. That the conductor politely informed him that the fare was 40 cents. That the plaintiff rudely declined to pay it, whereupon the conductor told him that he must leave the train, to which announcement the plaintiff at first assented, but soon afterwards said he would not go. That the conductor brought the train to a stop, and then said to the plaintiff to get off, but plaintiff cursed, and said he would not. When the conductor tried to lead him out, he resisted; and then the conductor called to his aid the baggage master, Winn, and the colored porter. That these three had the utmost difficulty in removing plaintiff from his seat in the car, and that in the effort to unclasp his hands from the seat the baggage master, Winn, strained some of the tissues of the muscles of his arm so that he is permanently disabled. That the plaintiff, in being moved from the train, exerted all of his powers to prevent such removal, —pushing the conductor and his assistants about; pushing the baggage master to the floor, and falling on him; catching hold of the seats as be passed; planting his foot against the door of the car; and when on the platform, on the way out, he seized the iron railing, kicked the conductor in the belly, hurling him down the bank, and, when on the ground, assailed the conductor with some bridles held in his hand, by...