Pendleton v. Norfolk & W. Ry. Co, (No. 3523.)

CourtSupreme Court of West Virginia
Writing for the CourtRITZ
Citation95 S.E. 941
PartiesPENDLETON. v. NORFOLK & W. RY. CO. et al.
Docket Number(No. 3523.)
Decision Date23 April 1918

95 S.E. 941

PENDLETON.
v.
NORFOLK & W. RY.
CO. et al.

(No. 3523.)

Supreme Court of Appeals of West Virginia.

April 23, 1918.


(Syllabus by the Court.)

Error to Circuit Court, Mercer County.

Action by Bascom W. Pendleton against the Norfolk & Western Railway Company and others. Judgment for plaintiff, and. defendants bring error. Reversed, verdict set aside, and cause remanded for a new trial.

French & Easley and Bernard McClaugherty, all of Bluefield, and A. W Reynolds, of Princeton, for plaintiffs in error.

Sanders, Crockett & Kee, of Bluefield, and John R. Pendleton, of Princeton, for defendant in error.

RITZ, J. The plaintiff in this case purchased a ticket from the defendant railway

[95 S.E. 942]

company's agent at Pocahontas, Va., entitling him to passage on one of its passenger trains to Cooper, W. Va. He claims that with this ticket in his possession he boarded a train of the defendant company at Pocahontas, and placed his hand baggage in a seat in one of the cars thereof; that before he got on the train he had been in conversation with a minister of the gospel by the name of Gose, with whom, however, he had had no previous acquaintance. After taking his seat he observed Gose in another seat, and for the purpose of resuming the conversation with him he left his baggage and took the seat beside him. In going to the station of Cooper the train upon which plaintiff was a passenger passed the station of Bluestone Junction. At some point between Pocahontas and Bluestone Junction the conductor came through the car and, as plaintiff contends, took up his ticket from Pocahontas to Cooper. This statement is fully borne out by the testimony of Mr. Gose who says that he and the plaintiff were occupying the same seat, and when the conductor came through he (Gose) gave the conductor his mileage to Bluestone Junction, and that the plaintiff surrendered his ticket to the conductor. This is denied by the conductor. When the train reached Bluestone Junction Gose alighted therefrom, and the plaintiff returned to the rear of the car and took his former seat. After the train left Blue-stone Junction on its way to Cooper the conductor again came through the car and called upon the plaintiff for his ticket. The plaintiff informed the conductor that he had surrendered his ticket before reaching Blue-stone Junction, and also gave the conductor information as to his changed position since leaving that station. The conductor denied this statement of the plaintiff and contended that he had not received any ticket or fare from him, and the plaintiff, it seems, was as insistent that he had surrendered his ticket to the conductor. While the controversy was going on the conductor continued to take up tickets from the passengers in the adjoining seats. It seems that when the conductor approached the plaintiff on this occasion and demanded his ticket plaintiff was reading a newspaper, and while the controversy with the conductor was going on he folded this newspaper and held the same in his hand. Plaintiff says that when the conductor repeatedly charged him with not paying his fare he arose in his seat and insisted to the conductor that he had surrendered his ticket on the occasion referred to, and in order to be impressive tapped the conductor on the shoulder with the folded newspaper, which he states was a habit he had when in conversation with others whom he desired to impress with his statements. About the same time, according to his statement, he told the conductor if he (the conductor) said that he had not given him his ticket he was a damn liar, and plaintiff says that when he made this statement the conductor struck him a severe blow in the face, which knocked off his glasses and cut a very deep gash over one eye. As a result of this blow the plaintiff fell in his seat, and according to his statement the conductor continued to pummel him with his fists until he had administered some ten or twelve severe blows to him, and then kicked him in the leg, as a result of which he sustained a severe gash. About this time the train had reached the plaintiff's destination, Cooper, and the plaintiff was told to get his traps and get off the train, which he did. The same afternoon he returned to Bluefield and went to a hospital, where his wounds were treated, and where he remained until the next afternoon, when he left the hospital and went to Princeton, where he was again treated by a physician. The conductor, who is one of the defendants here, contends that the plaintiffs story is not accurate as to the occurrence on that occasion. He states that the plaintiff never gave him the ticket, to Cooper, but that when he approached the plaintiff, and the plaintiff insisted that he had given him the ticket, he had come to the conclusion that because of the probability of his making a mistake he would give the plaintiff the benefit of the doubt, and passed on to take tickets from the passengers to the rear of plaintiff; that when he did this plaintiff rose up in his seat and accused him (the conductor) of trying to embarrass him before the passengers by charging him with attempting to defraud the railroad company out of the insignificant fare, and called him a damn liar, and struck him in the face with the newspaper, whereupon he struck the plaintiff with his fist and knocked him down in his seat, and according to his own statement struck him four or five severe blows, and then kicked him with his foot. A number of...

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42 practice notes
  • Thomas v. Beckley Music & Elec. Co., No. 12083
    • United States
    • Supreme Court of West Virginia
    • November 21, 1961
    ...W.Va. 621, 41 S.E.2d 680; Toler v. Cassinelli, 129 W.Va. 591, 41 S.E.2d 672; Pendleton v. Norfolk & Western Railway Co., 82 W.Va. 270, 95 S.E. 941, 16 A.L.R. 761; Goodman v. Klein, 87 W.Va. 292, 104 S.E. The defendants contend that the trial court committed reversible error in refusing ......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...Oil and Gas Co., 169 W.Va. 624, 628[, 289 S.E.2d 197, 199] (1982) (quoting Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 277-78 [, 95 S.E. 941, 944] (1918) (“The object of such punishment is to deter the defendants from committing like offenses in the future, and this it may be said ......
  • Quicken Loans, Inc. v. Brown, No. 13–0764.
    • United States
    • Supreme Court of West Virginia
    • November 25, 2014
    ...Oil & Gas Co., 169 W.Va. 624, 628, 289 S.E.2d 197, 199 (1982) (quoting Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 277–78, 95 S.E. 941, 944 (1918) ), we said:The object of such punishment is to deter the defendants from committing like offenses in the future, and this it may be......
  • Feliciano v. 7-Eleven, Inc., No. 29564.
    • United States
    • Supreme Court of West Virginia
    • November 30, 2001
    ...such continuously for many years prior thereto."); Syl. pts. 1 & 2, Pendleton v. Norfolk & Western Ry. Co., 82 W.Va. 270, 95 S.E. 941 (1918) (Syl. pt. 1: "In a civil action to recover damages for an assault and battery, the defendant cannot justify upon the ground of self-......
  • Request a trial to view additional results
42 cases
  • Thomas v. Beckley Music & Elec. Co., No. 12083
    • United States
    • Supreme Court of West Virginia
    • November 21, 1961
    ...W.Va. 621, 41 S.E.2d 680; Toler v. Cassinelli, 129 W.Va. 591, 41 S.E.2d 672; Pendleton v. Norfolk & Western Railway Co., 82 W.Va. 270, 95 S.E. 941, 16 A.L.R. 761; Goodman v. Klein, 87 W.Va. 292, 104 S.E. The defendants contend that the trial court committed reversible error in refusing ......
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...Oil and Gas Co., 169 W.Va. 624, 628[, 289 S.E.2d 197, 199] (1982) (quoting Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 277-78 [, 95 S.E. 941, 944] (1918) (“The object of such punishment is to deter the defendants from committing like offenses in the future, and this it may be said ......
  • Quicken Loans, Inc. v. Brown, No. 13–0764.
    • United States
    • Supreme Court of West Virginia
    • November 25, 2014
    ...Oil & Gas Co., 169 W.Va. 624, 628, 289 S.E.2d 197, 199 (1982) (quoting Pendleton v. Norfolk & W. Ry. Co., 82 W.Va. 270, 277–78, 95 S.E. 941, 944 (1918) ), we said:The object of such punishment is to deter the defendants from committing like offenses in the future, and this it may be......
  • Feliciano v. 7-Eleven, Inc., No. 29564.
    • United States
    • Supreme Court of West Virginia
    • November 30, 2001
    ...such continuously for many years prior thereto."); Syl. pts. 1 & 2, Pendleton v. Norfolk & Western Ry. Co., 82 W.Va. 270, 95 S.E. 941 (1918) (Syl. pt. 1: "In a civil action to recover damages for an assault and battery, the defendant cannot justify upon the ground of self-......
  • Request a trial to view additional results

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