Norton v. Consol. Ry. Co.

• Decision Date: 05 June 1906
• Citation: Norton v. Consol. Ry. Co., 63 A. 1087, 79 Conn. 109 (Conn. 1906)
• Parties: NORTON v. CONSOLIDATED RY. CO.
• Court: Connecticut Supreme Court

63 A. 1087

79 Conn. 109

NORTON

v. CONSOLIDATED RY. CO.

Supreme Court of Errors of Connecticut.

June 5, 1906.

Appeal from Court of Common Pleas, New Haven County; Jacob B. Ullman, Judge.

Action by Thomas E. Norton against the Consolidated Railway Company.From a judgment for plaintiff for substantial damages, defendant appeals.Reversed and remanded for assessment of nominal damages.

George D. Watrous and Henry F. Parmele. for appellant.Benjamin Slade, for appellee.

HALL, J.The complaint alleges that the defendant is a common carrier of passengers by an electrical street railway, and that on the day named, while the plaintiff was lawfully riding as a passenger in one of the defendant's cars, and had paid his fare for transportation to Winchester avenue in the city of New Haven, he was unlawfully assaulted by the conductor of the car in attempting to forcibly remove him from the car.As appears from the finding of facts the plaintiff and his wife, who resided on Winchester avenue, and were accustomed to ride upon the street cars in the city, and were familiar with the manner in which they were operated, and with the defendant's system of giving transfers from one line to another, were, in the evening of August 25, 1905, passengers on an electric street car of the Savin Rock Line of the New Haven lines operated by the defendant, and from which line transfer tickets are given to passengers desiring to be transferred to others of the defendant's lines, the names of which are printed upon the transfer tickets, and among which are the Winchester Avenue and the State Street lines.Upon such transfer tickets are also printed: "Not good except at transfer points, and in the direction indicated on first car after time canceled."While on the Savin Rock car the plaintiff paid the fare and requested transfers to the Winchester Avenue line, which connects with the Savin Rock line at the corner, of Church and Chapel streets, and from said corner runs westerly along Chapel street.In delivering a transfer to a passenger the conductor punches or perforates it opposite one of the names of lines printed upon it, in such a manner as to indicate upon which line it may be used.The transfers delivered to the plaintiff by the conductor of the Savin Rock car were not punched opposite the name of the line "Winchester Ave." but were punched opposite the name of the line "State St.," and so as to indicate that the passenger presenting it was entitled to ride upon a car on the State Street line only, which line, from the corner of Church and Chapel streets, extends northerly along Church street.The plaintiff and his wife left the Savin Rock car at the corner of Church and Chapel streets, and entered the first Winchester Avenue car which passed, and upon presenting to the conductor on that car said two transfers was informed by him that they were not good because they were punched for State Street.The plaintiff stated to the conductor that they had just alighted from a Savin Rock car, and had asked the conductor of that car for Winchester Avenue transfers, and that it was not his fault that that conductor had made a mistake, and upon repeated requests refused to either pay his fare, or leave the car.The conductor thereupon attempted to remove the plaintiff from the car by force, using no more force than was necessary and reasonable therefor, but desisted from such attempt, after the plaintiff resisted such removal.Upon these factsthe trial court held that the plaintiff was lawfully riding upon the Winchester Avenue car, and had the right to resist the attempt to expel him therefrom, upon his refusal to pay his fare; that the conductor was not justified in attempting to expel the plaintiff, and that he unlawfully assaulted him, and rendered judgment for the plaintiff for $200 as substantial damages.

This is an action to recover damages for the alleged tort of the defendant's servant in attempting to forcibly eject the plaintiff from the car, and not for the recovery of damages for a breach of the contract of carriage between the plaintiff and defendant.The defendant justifies the attempted expulsion of the plaintiff upon the ground that the latter unlawfully persisted in remaining and riding in the car, without either paying his fare or producing a transfer ticket purporting to entitle him to ride in that car; and that no unreasonable force was used in the attempt to remove him.As it is found that no unnecessary force was employed, the case must turn upon the question of whether, upon the facts stated, the plaintiff had the right to insist upon being carried upon the transfer ticket which he presented, and to forcibly resist the conductor's attempt to expel him.

The plaintiff contends that though the transfer check may have been prima facie evidence of a different contract of carriage, yet the facts show that when he paid his fare to the conductor upon the Savin Rock car, and requested of him a transfer to Winchester Avenue, the real undertaking of the defendant was to carry him by a Winchester Avenue car, and that having informed the conductor of the Winchester Avenue car of these facts, and of the mistake of the conductor of the Savin Rock car in wrongly punching the transfer, he was entitled to be carried upon the Winchester Avenue car.In the absence of any statutory or other express provision or regulation defining the contract of carriage between electric street railway companies, and the rights of their passengers in cases like the present, they must be ascertained by considering all the circumstances indicating the intention and understanding of both parties including not only what is required for the reasonable safety, convenience and comfort of passengers, but what is reasonably necessary to enable the company to properly perform the functions for which it was created and what the known and reasonable rules of the company are with reference to which the parties are presumed to have contracted.

There are certain facts and established rules connected with the operation of electric street railways, which in these days are familiar to every person of ordinary intelligence who...