Sage v. The Evansville And Terre Haute Railroad Company

• Decision Date: 11 March 1893
• Docket Number: 15,755
• Citation: 33 N.E. 771,134 Ind. 100
• Parties: Sage v. The Evansville and Terre Haute Railroad Company
• Court: Indiana Supreme Court

33 N.E. 771

134 Ind. 100

Sage v. The Evansville and Terre Haute Railroad Company

No. 15,755

Supreme Court of Indiana

March 11, 1893

From the Daviess Circuit Court.

Judgment affirmed.

W. A Cullop and C. B. Kessinger, for appellant.

J. E Iglehart, E. Taylor, W. R. Gardiner, S. H. Taylor and C. G Gardiner, for appellee.

OPINION

Howard, J.

This action was brought in the Knox Circuit Court, and on motion of appellee the venue was changed to Daviess county. The complaint is in two paragraphs. The first paragraph charges, that appellant was a passenger on a train of the appellee company, from Vincennes to Decker's Station; that he paid the conductor in charge of said train forty cents for his passage, said sum being the fare charged by appellee between said points; that, being carried about half the distance, the conductor stopped the train, and without refunding the amount so paid, without cause, wrongfully, wilfully and forcibly ejected appellant from the train, and refused to carry him further unless he paid fifteen cents additional fare; that he refused to pay the same; that he was assaulted, insulted and abused, whereby he suffered greatly in body and mind, for which he demanded damages.

In the second paragraph of complaint appellant alleges his reception upon a train of appellee as a passenger; that he paid forty cents to the conductor of the train, for his passage from Vincennes to Decker's Station, which was the regular and usual fare; that thereupon the conductor demanded ten cents more; that appellant refused to pay the same; that the conductor then said he would put appellant off at Purcell, an intermediate station; that appellant stated that he had paid fare to Decker's Station, and did not want to go to Purcell, but to Decker's, that the train having passed Purcell, the conductor came and demanded fifteen cents extra to carry appellant to Decker's, which he refused to pay; that the conductor then threw down ten cents on a seat, and stopped the train, and, without refunding the the amount appellant claimed to have paid for passage from Vincennes to Decker's, assaulted and forcibly ejected appellant from the train; that he was cursed, abused and maltreated, and had to walk five miles to Decker's, on account of all of which he suffered mentally and physically, and demanded damages therefor.

A demurrer was overruled to the complaint, whereupon the complaint was answered by the general denial.

The record discloses the fact that there were two trials of the case in Daviess county.

On the first trial there was a verdict of one hundred and fifty dollars for appellant.

On application of appellee, this verdict was set aside and a new trial granted.

The second trial resulted in a verdict for appellee, and judgment was rendered thereon.

Appellant's motion for a new trial was overruled on April 1, 1890, and an appeal granted to this court.

In support of his motion for a new trial, the overruling of which is the only error assigned in this court, the appellant offers fifteen reasons.

"Of these reasons for a new trial, appellant," as stated in his brief, "relies on those which raise the question of the court's ruling on the admission of testimony, the giving of certain instructions on its own motion, and the refusal to give instructions requested by appellant."

To these questions, therefore, we shall confine our attention.

The rulings complained of as to the admission of evidence are given, in the motion for a new trial, as follows, and we will dispose of them in order:

5 1/2. Refusal of the court to let the plaintiff testify that he tendered forty cents to pay his fare in good faith, honestly believing it to be the correct sum for such passage from Vincennes to Decker's.

If the contention of appellant, in his brief, were correct, that "This action was one for trespass to the person," the evidence thus sought to be elicited would certainly be incompetent. If this were an action for an unlawful invasion of appellant's right of personal security, then it would be wholly immaterial to prove that he had acted with proper care and in good faith, for no degree of carelessness on his part could justify such trespass upon his person. Chicago, etc., R. R. Co. v. Bills, 118 Ind. 221, 20 N.E. 775. But not only the pleadings, but also the evidence in the record and the instructions of the court show that the parties, as well as the court, treated this action as one for damages for failure of appellee to observe its contract with appellant--that is, to carry him, "after being paid the regular and usual fare," from Vincennes to Decker's Station. If appellee failed in that duty, the trespass on the person is but an aggravation of the wrong. This is not such a case as the Chicago, etc., R. R. Co. v. Bills, supra. In that case the amended complaint upon which trial was had proceeded "upon the theory that the plaintiff may have been wrongfully or carelessly on the train, and that he was ejected therefrom with unnecessary force." Chicago, etc., R. R. Co. v. Bills, supra.

In the case before us, appellant, in the first paragraph of his complaint, says that he was admitted into appellee's train at Vincennes, and took passage for Decker's Station; that, as such passenger, he paid the conductor the sum of forty cents, being the fare charged from Vincennes to Decker's, and that the conductor, after being so paid the regular and usual fare between said points, carried appellant about half the distance, when he stopped the train, and, without any fault of plaintiff, forcibly ejected him. The second paragraph is to like effect.

On the theory on which the case was tried, it was at most harmless error to exclude the evidence sought to be elicited by allowing the plaintiff to testify that he tendered forty cents to pay his fare, in good...