New York, L. E. & W. Ry. Co. v. Bennett

• Decision Date: 06 June 1892
• Docket Number: 11.
• Citation: 50 F. 496
• Parties: NEW YORK, L.E. & W. RY. CO. v. BENNETT et ux.
• Court: U.S. Court of Appeals — Sixth Circuit

50 F. 496

NEW YORK, L.E. & W. RY. CO. v. BENNETT et ux.

No. 11.

United States Court of Appeals, Sixth Circuit.

June 6, 1892

Statement by SWAN, District Judge:

This is an action on the case commenced by attachment in the circuit court of Hamilton county, Tenn., for the ejection of Mrs. J R. Bennett one of the defendants in error, from the passenger train of the railway company, en route from Cincinnati to New York. The action sounds in tort, and the declaration claims damages for the mortification incident to the plaintiff's removal from the train, and for an alleged false arrest and imprisonment of the female plaintiff at Dayton, Ohio, as part of the wrong and injury attending her expulsion. Upon the petition and bond of the plaintiff in error the case was removed to the circuit court of the United States for the southern division of the eastern district of Tennessee. It was there tried, and a verdict for $1,500 rendered for the plaintiff, upon which judgment was subsequently entered. From that judgment the defendant below took this writ of error and the case is here for review on exceptions duly taken. Defendant pleaded 'not guilty.'

The material facts involved are in the main condensed from the testimony of the plaintiff Hattie A. Bennett, and her husband, who joins with her in the action. Mrs. Bennett desiring to go to Binghamton, N.Y., with her two infant children, her husband applied for and purchased for her from the agent of the Cincinnati Southern Railroad, in August 1890, at Chattanooga, Tenn., a limited ticket to New York, paying therefor $20. The ticket was composed of three coupons,-- one for passage to Cincinnati, one to Dayton, and the third thence to New York,-- and on each coupon were printed the figures and letters '2nd,' indicating the class of the ticket. This designation and notice was also printed in the body of the ticket, as one of the terms and limitations of the contract. The ticket, except the first coupon, is as follows:

'TICKET.'

QUEEN AND CRESCENT ROUTE.

ONE PASSAGE

OF CLASS INDICATED TO POINT ON

N.Y., LAKE ERIE, & WESTERN R.R.

BETWEEN PUNCH MARKS.

On Coupons attached, when Officially Stamped, subject to the following Contract.

1st. In selling this Ticket and checking Baggage hereon, this Company acts only as Agent and is not responsible beyond its own line.

2nd. This Ticket is subject to the STOP-OVER regulations of the line over which it reads.

3rd. It is VOID for passage if any alterations or erasures are made hereon, or if more than one date is canceled.

4th. The UNPUNCHED FIGURE on the Coupons of this Ticket indicates its Class.

5th. This Ticket is good until used, unless limited by stamp or written indorsement or cancelled by punch in the margin of Contract.

6th. IF LIMITED as for time, this Ticket will be void after midnight of date cancelled by 'L' punch in margin hereof and is subject to the exchange either in whole or in part at any point on the route for a continuous Passage Ticket or Check.

7th. When this Ticket is signed below by the purchaser, it is NOT TRANSFERABLE, and if presented by any other person than the original holder it will be taken up and full fare collected. The holder will write his (or her) signature when required to do so by Conductors or Agents.

8th. When this Ticket is not witnessed by Agent no signature is required by the purchaser.

9th. The Baggage liability of the Companies represented on this Ticket is limited to wearing apparel not exceeding $100 in value.

(Image Omitted) The evidence is that the price of a first-class ticket from Chattanooga to New York on the train she took was some six or eight dollars more, and that J. R. Bennett knew that fact, though he testified that the one purchased 'was just as good to him as if he had paid $40 for it, and that he had traveled on the same ticket, (i.e., of the same class,) and never had any trouble. ' Mrs. Bennett took the Cincinnati Southern train at Chattanooga, August 10, 1890, and reached Cincinnati at 7 A.M.,-- TWO hours late for the connecting train,-- and there waited until 6:25 P.M., when, as she testifies, a ticket agent told her the New York train left. She also says that she took her ticket to a baggage master, to see that her baggage was put on the train, and he told her she would take the 6:25 P.M. train to New York, which was a first-class train. She took that train, and gives this version of the occurrences for which she sues:

'When the conductor came for tickets, the first thing he said to me, he says: 'What are you on this train for?' I says: 'Why, what is the trouble?' He says: 'This is not your train. This train goes right through to New York.' I said: 'Did it? Well, what is the trouble?' He says: 'Your ticket does not call for this train. You must get off at Dayton, or I'll put you off.' ' Well,' I says, I don't see why I should be put off this train if the train is going through to New York.' I did not know of any trouble, and I told the conductor I would like to know what the trouble was. I did not like to be delayed any longer. I had been delayed through the day; had to wait in Cincinnati through the day. Well, he says: 'You get off. You must get off. If you don't I'll put you off. I ought to put you off down in the country.' He says: 'Why did you not show the ticket at the train?' I says: 'I did.' He says: 'You did not.' I says: 'I took it to the ticket agent, and I have proof of it.' He says: 'Well, give it to me.' And after examining the ticket he took off a portion of the ticket and then gave me this little white ticket. I had two small children with me, and of course hated to get off at Dayton. I can't remember just what took place there, the excitement was too much for me. He (the conductor) said he would take me off anyway, and then he says: 'We will see that you get on the next train all right,'-- that was going out between eleven and one o'clock that night. Between one and two o'clock that night he came in with a policeman, and said: 'Your train is due, you must go and get your children on board.' Then I tried to have him know, and shook my head, that I could not, that I did not want to go any further. I was lying there, and I could not speak very well; I had such a bad spell; and I did not like to go any further. I felt very bad, and there was nobody to meet me when I got to New York, and just being in the condition I was, I was going there for my health. I thought if I got any worse, I had better go back home. Then he seemed to be out of patience, and says: 'I would like to know what you are going to do. You can't stay here in the depot. You have not got any money.' I motioned to him to hold down, so I could whisper, and I says: 'You telegraph to my husband. I know he will aid me.' He says: 'I know what I'll do. I'll send for the patrol wagon, and we will take you to the hospital."

She was subsequently assisted to an hotel near the depot, where she was properly cared for until noon of the next day, when she returned home, where she had a severe attack of nervous prostration. She was asked: 'Question. You say the only thing the conductor said about your ticket was that it did not call for that train? Answer. That is what he said. He said I had no business on that train.'

On cross-examination she admitted that the day the policeman at the depot, finding she had not enough money to go back home, solicited the balance, and turned it over to her; that her baggage was checked at Central Depot at Chattanooga for the whole route; that before the train left Dayton the conductor told her that her ticket did not call for that train, and that the next train, for which it was valid, would arrive about midnight, but she preferred to wait until she felt better or go back home.

'Question. What wrong had been done to you up to that time? Answer. I could not tell you how much wrong. I was wronged through my feelings. I think I was very much wronged. (She does not know how she got to the ladies' waiting room, but supposes she was led there by the conductor.) Q. If there was anything else that was done to you I will be very much obliged if you will tell the jury what it was. A. I don't know of anything. Q. You have already stated what the conductor said to you when he came to take up your ticket, between Cincinnati and Dayton,-- that he told you you ought not to be on that train. State whether,-- what his manner was, whether it was rough and harsh, or it was kind and gentle. A. It was very rough. So much so that is what scared me most. If he had spoke pleasant to me it would have been so much better. He spoke up in such a commanding way.'

She states that 'no other insult or indignity was offered by any one else except the conductor. ' There is no evidence that plaintiff was arrested or imprisoned, or was subjected to any expense while at Dayton. The foregoing states all that is material of the plaintiff's testimony relevant to the conduct of the conductor and the circumstances of her expulsion at Dayton. The plaintiff was ejected from one of the cars of a first-class limited train, upon which, under the regulations of the company, only passengers having first-class tickets were allowed to ride. The testimony of the conductor, who is an employe of the Cincinnati, Hamilton & Dayton Railroad, does not vary essentially from that of the passenger, except that he denied all ungentlemanly conduct. The record shows that the plaintiff, with her children, were escorted by the conductor and station...