Rudy v. RIO Grande Western Railway Co.

• Citation: 30 P. 366,8 Utah 165
• Court: Supreme Court of Utah
• Decision Date: 17 June 1892
• Parties: DANIEL B. RUDY, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

30 P. 366

8 Utah 165

DANIEL B. RUDY, RESPONDENT, v. RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

June 17, 1892

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts, and see Nichols v. Railway Co., 7 Utah, 510.

Reversed and remanded.

Messrs Bennett, Marshall and Bradley, Mr. Robert Harkness, of counsel, for the appellant.

Mr Orlando W. Powers, for the respondent.

ANDERSON J. BLACKBURN, J., and MINER, J., concurred.

OPINION

ANDERSON, J.:

This is an action by the plaintiff against the defendant to recover damages alleged to have been sustained by plaintiff by reason of having been put off of a train on defendant's road by the defendant's servants. There was a verdict and judgment in favor of the plaintiff for the sum of $ 1,000. The defendant made a motion for a new trial, which was overruled by the court, and the appeal is from the judgment and from the order overruling this motion. On the 11th day of August, 1890, the plaintiff purchased at Kansas City, Missouri, from the agent of the Union Pacific Railway Company, a coupon second-class ticket, entitling him to ride over the Union Pacific Railway to Denver, Colorado, and from there over the Denver & Rio Grande Railway to Grand Junction, in the state of Colorado, and thence over the defendant's road to Salt Lake City. The ticket was in the form of a contract, and was signed by the plaintiff, and provided that "any line over which it reads may decline to honor the ticket, unless presented in time to reach its destination by or before midnight of the date punched in the margin;" and, "if not so used, * * * this ticket is void, and the conductor will take it up and collect full fare." The time limited by the ticket expired at midnight, on August 15th. While on the Denver & Rio Grande road the plaintiff was delayed by washouts, and also by voluntarily leaving the train on two occasions, and permitting it to proceed without him; so that when he reached the defendant's road at Grand Junction it was 12:30 A. M. of August 17th. Here he had to change cars, and some one in the uniform of defendant's servants directed him to the second-class coach in the train on defendant's road. The next station west of Grand Junction is Fruita, distant about ten miles, and here there was a station house and the ordinary accommodations for travelers, while west of Fruita about seven miles was a signal station called "Crevasse," where there were no accommodations for travelers. No one lived there, and there were no buildings of any kind there. The nearest dwelling houses were some ranch houses a mile or a mile and a half distant, and which were scattered along back to Fruita. Before reaching Fruita, the conductor on the defendant's road demanded of plaintiff his ticket, which plaintiff showed him, when the following colloquy occurred, as testified to by plaintiff: "The conductor told me my ticket was no good; that it had run out; and he demanded that I pay fare. He demanded $ 20.05, which he said was the fare from Grand Junction to Salt Lake City. I had ridden on the train from Grand Junction. I had sufficient money in my pocket to pay the fare, but I told him I had paid for my ticket, and I did not think I owed the company anything more. He said I would have to get off if I did not pay. All this took place before the train got to Fruita. I told him to go through the train, and when he came back I would tell him about the washout. And I told him when he came back I would decide whether I would pay or not; that I would make up my mind what to do. I knew at that time I would have to pay or leave the train. About twenty minutes afterwards the train stopped at Fruita. At that time I made up my mind that I did not owe the company anything, and that I would not pay anything more. The conductor came back to me afterwards, and I told him that I was not going to pay; that I did not owe the company anything; I had it in my pocket, and was able to pay, but that it was my money. He offered to give me a receipt for the money, and I told him I would pay if he would guarantee to me that I would get it back. He offered to give me a receipt, but no guaranty. He said he would give me a receipt, and I could get my money back in Salt Lake City, if they found fit to pay me back. I don't recollect that he said the money would be repaid to me if it was found that my ticket entitled me to ride over the road. The conductor did not offer to use any violence towards me. I said nothing about suing the company for damages. Some people call the place where I was put off a way station. It is the first one I ever saw. There was a long side track there, but no platform. It was a dark night, no moon, but I could see the surrounding country so as to know it again when I passed it again next day. The place was about ten miles from Fruita. That is what the agent told me at Fruita." The plaintiff was ejected from the train at Crevasse, in the state of Colorado, on the night of August 17, 1890, about one o'clock A. M. Crevasse is seven miles west of Fruita. The next station west of Crevasse is Cisco, distant about thirty-four miles. The defendant had a rule in force that its conductors should collect full fare from all passengers not provided with a ticket, and that they should not receive an expired ticket, and that if a passenger presented an expired ticket the conductor should require him to pay his fare or leave the train.

The court instructed the jury that the plaintiff had no right to ride on the defendant's train after the five days limit in his ticket had expired. The court also, in instruction No 2, instructed the jury that if, when plaintiff got on defendant's train at Grand Junction, "he in good faith believed he had a right to ride upon it, then the defendant or its agents had no right to compel him to get off the train--out of the car and off the train--in the nighttime, at a place where there was no station house or other building near by in which he could secure shelter. They had no right to compel him to get off under such circumstances, in a desolate place, or where there were no buildings in which he could find lodging and shelter, and had no right to compel him to get off at a dangerous place." Counsel for defendant excepted to so much of this instruction as charged the jury that, under the circumstances named, the defendant would have no right to put the plaintiff off at any place where there was no station house or other building in which he could find shelter, and assigns the giving of the same as error. The court also, in instruction No. 3, told the jury that "if you believe, from the preponderance of the evidence, that the defendant, through its agents, compelled the plaintiff to get off the train on which he believed he...