Northern Pac. R. Co. v. Pauson

• Decision Date: 31 October 1895
• Docket Number: 224.
• Citation: 70 F. 585
• Parties: NORTHERN PAC. R. CO. v. PAUSON.
• Court: U.S. Court of Appeals — Ninth Circuit

70 F. 585

NORTHERN PAC. R. CO. v. PAUSON.

No. 224.

United States Court of Appeals, Ninth Circuit.

October 31, 1895

This is an action to recover damages for the alleged wrongful expulsion of the defendant in error from a passenger car of the plaintiff in error. It was commenced in the superior court of the city and county of San Francisco, and, upon motion of the plaintiff in error, was removed to the United States circuit court. The complaint alleges that on the 6th day of September, 1892, the plaintiff (defendant in error) became and was a passenger upon a train of cars operated upon the railroad of defendant (plaintiff in error), running from Seattle, Wash., to Portland, Or., for the purpose of being transported from Seattle to Portland and had paid to the defendant the fare for such transportation; that while he was a passenger upon said train the defendant wrongfully, maliciously wantonly, and willfully assaulted, insulted, and maltreated the plaintiff, and by force and arms ejected him from the said train; that by reason of said acts the plaintiff suffered both physical and mental injuries,-- and prayed for damages in the sum of $10,000. The answer denies these allegations of the complaint. The case was tried before a jury, and a verdict was rendered in favor of the plaintiff for the sum of $310.

Upon the trial, the plaintiff, to sustain the issues upon his part, introduced evidence to the effect that he was a merchant engaged in business at San Francisco, Cal., and at Seattle, Wash.; that he had purchased of the defendant a round-trip ticket from Portland to Seattle and return, which among other things, required that the holder must be identified as the original purchaser of the ticket by writing his or her signature on the back thereof, or by other means if necessary, in the presence of the ticket agent of the Northern Pacific Railroad at Seattle, Wash., who will witness the same, otherwise it will not be honored for passage; that he had made the trip from Portland to Seattle on this ticket; that on the 6th day of September he sent a messenger to the ticket office of defendant at Seattle to reserve a sleeper; that about 10 o'clock on the evening of said day he went to the ticket office, and asked the agent if he had a sleeper; that the agent replied, 'What is your name?' and then asked him for his ticket; that he handed over the ticket in question; that the agent took it, and laid it on the board, and gave him a pen, and said to him, 'Please sign that'; that he signed it, and handed it to the agent; that the agent took it to the rear end of the ticket office, and came back with a ticket berth for the sleeper; that the agent folded both tickets together, and handed them over to the plaintiff, who thereupon paid to the agent the sum of two dollars for the sleeper ticket; that plaintiff then put the folded tickets in his pocket, got on the train, and, after getting a check for his sleeper berth, went to bed. As to what occurred on the train the plaintiff testified as follows: 'I was asleep when the conductor came around, and he asked for my ticket. I had put my ticket under a pillow, in order not to be annoyed, so I could get it when asleep,-- under my pillow, in order to have it handy when the conductor comes. So I handed him the ticket, and he looked at it, and he told me that I could not ride on that ticket. I was surprised, and thought may be I gave him the wrong ticket of something, and I asked him what the trouble was with it, and he said, 'That ticket won't go,' and I explained the matter to him. I looked at the ticket,-- examined the ticket,-- and seen where there was a place where it says, 'Station agent stamp here,' and I seen there was no stamp on it. I explained the matter to him, and I says, 'I have done my part.' I presented the ticket in the presence of two of our men from the store, and I described to him what I had done in regard to it, and that the ticket was all right; that I got the ticket, and paid for it, and signed it in his presence,--all that was required of me to do; and he says, 'That don't make any difference. I know my business, and the ticket ain't no good, and you cannot ride on it.' I told him I had positively paid for the ticket, and it was my own until I had used it up, and 'i am going to ride on it.' He says, 'You cannot; and I know my business; and you cannot ride on this ticket.' And we talked the matter over for some time, and I hated to get out of bed, and told him so. And he says: 'You have either got to pay your fare or get off.' I told him: 'You mean, according to that, I have got to get out of bed and dress myself? He says, 'That is what you have got to do,' and I got up and dressed myself, and before I got through dressing the train stopped, and the conductor came to me, and I was not quite done yet, and he waited until I got through, and he says, 'Now get off the train.' I told him: 'No, I would not. I wanted to ride on the train, and I had paid my fare, and I did not want to get off.' He says, 'All right; I will put you off.' I says, 'All right; you will have to put me off. I won't go until I am put off.' He says, 'Have you any baggage,' and I says, 'Yes,' and I pulled a satchel from under the bed, and I am not positive, but I think the porter took my satchel, and he led me out of the train onto the platform. When I was on the platform, it looked really-- I could not see any light-- only a small station there, and asked him if he knew where I could find a hotel or place to stop over night, and he says he don't know; he don't care a damn. I look around there, and did not like to lay out all night, and did not see any place where I could go to. I told him, 'I think I had better pay my fare and go on,' and I went on the train, and paid my fare, and went on. * * * I was excited, and felt bad on being put off the train. Never had anything of that kind happen to me before, and I travel a great deal. I felt naturally insulted and degraded, and consider I was treated just like a tramp in being put off the train. I talked to the conductor in reference to the affair, and told him who I was, and told him I was certainly put off the train wrongfully; explained the matter to him; told him how the whole thing happened; told him the same thing over again before he put me off; and the conductor told me he was satisfied in his mind I was the right man, that it was my ticket, and that I was the right party; and I told him that I belonged to the firm in Seattle, and he told me that he had his instructions, and he had to do according to his instructions. ' There was a conflict in the evidence as to what occurred at the ticket office between the agent and the plaintiff. The defendant, at the close of the case, moved the court to instruct the jury to find a verdict for defendant, which motion was denied. The court, after stating the conditions on the ticket, and the notice given to the passenger 'that it will not be good unless so signed, witnessed, and stamped,' and that this notice was substantially a part of the terms of the ticket, charged the jury as follows: 'Therefore it was the duty of the plaintiff to present the ticket to an agent for signing and witnessing and stamping. When so presented and signed, it was the duty of the agent to witness and stamp it. There is a controversy between the plaintiff and defendant as to what was done, which you are to decide from the testimony; and if you find from the testimony and evidence that the plaintiff did present himself to an agent, and sign the ticket in his (the agent's presence, and the agent took the ticket, and returned it in such a way and under such circumstances as to justify plaintiff in believing that he, the agent, had witnessed and stamped the ticket and plaintiff, so believing, entered the train, he was a legal passenger; and if you find from the evidence, further, that the explained to the conductor the circumstances, he had a right to refuse to pay or deposit a fare with the conductor; and his removal from the train, if you find from the evidence he was removed, was unlawful.

Joseph D. Redding, for plaintiff in error.

George Lezinsky, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts).

The disposition to be made of this case depends upon the question whether the charge of the court to the jury states a correct legal principle applicable to the facts and circumstances of this case. The authorities bearing upon this question are by no means uniform, some of the courts holding that it is the duty of the passenger, before going upon the train, to examine his ticket, and to ascertain therefrom whether or not any mistake has been made by the ticket agent; that the face of the ticket is conclusive evidence to the conductor of the train as to the contract between the passenger and the railroad company; that the conductor can look only to the ticket, and has no right to be governed by any statement or explanation of the passenger; that if the ticket is not upon its face such a ticket as entitles the passenger to ride, the conductor has the right, and it is his duty, to eject him from the train; and that his only remedy for the mistake negligence, or carelessness...