Southern Ry. Co. in Kentucky v. Hawkins

• Decision Date: 09 November 1905
• Parties: SOUTHERN RY. CO. IN KENTUCKY v. HAWKINS.
• Court: Kentucky Court of Appeals

89 S.W. 258

121 Ky. 415

SOUTHERN RY. CO. IN KENTUCKY v. HAWKINS.

Court of Appeals of Kentucky.

November 9, 1905

Appeal from Circuit Court, Mercer County.

"To be officially reported."

Action by W. A. Hawkins, by his next friend, against the Southern Railway Company in Kentucky. From a judgment for plaintiff defendant appeals. Reversed.

E. H Gaither and Humphrey, Hines & Humphrey, for appellant.

W. C Bell and Robt. Harding, for appellee.

SETTLE J.

The appellee, W. A. Hawkins, 20 years of age, by D. B. Hawkins, his next friend, sued the appellant railroad company for his alleged wrongful ejection by the conductor from one of its passenger trains upon which he was attempting to ride from Harrodsburg to McBrayer, a distance of about 15 miles. The facts alleged in the petition as constituting his cause of action are that on Sunday evening, September 14, 1902, he purchased of appellant's ticket agent at McBrayer, and paid for, a roundtrip ticket which entitled him to ride as a passenger on appellant's passenger train from McBrayer to Harrodsburg on the evening of that day, and to return on another of its trains from Harrodsburg to McBrayer on the following day, September 15th; that he did on the night of the 14th ride on appellant's passenger train from McBrayer to Harrodsburg, and on the afternoon of the following day got aboard of another of its passenger trains at Harrodsburg with the intention of returning thereon to McBrayer, but upon reaching a point about one mile from Harrodsburg appellant's conductor in charge of the train willfully, unlawfully, wrongfully, and in violation of his rights as a passenger forced and required him to leave the train, whereby he was compelled to walk back to Harrodsburg and there remain until the next day; that his ejection from the train was effected in the presence of other passengers and caused him great humiliation of feeling, subjecting him to annoyance and inconvenience, by all which he was damaged in the sum of $2,000. The appellant's answer contained a traverse of the averments of the petition. Upon the trial of the case appellee recovered a verdict and judgment for $1,000. A new trial was sought, and a reversal is now asked, by appellant upon three grounds: (1) That the learned special judge should have given the jury a peremptory instruction to find for appellant; (2) that he erred in instructing the jury; (3) that the verdict is excessive.

It is insisted for appellant that it was entitled to the peremptory instruction, because the petition sought to recover for the alleged wrongful ejection of appellee from appellant's train, whereas he was properly put off the train by the conductor because his right to ride thereon was limited by his ticket, through the mistake of the agent who issued it to September 14th, the day of its purchase, and did not entitle him to be carried on its train on the 15th, and that, as there was no violence or unnecessary force used by the conductor in ejecting him from the train, he should have sued appellant for breach of contract growing out of the negligence or mistake of the ticket agent, and not in tort for being put off the train. We are aware it was held by this court in L. & E. Ry. Co. v. Lyons, 20 Ky. Law Rep. 516, 46 S.W. 209, that the "ticket of the passenger must usually be treated as conclusive evidence of the passenger's rights as between him and the conductor, leaving the passenger to his action against the carrier if he has not been given such a ticket as the contract called for; otherwise, the conductor would be compelled to accept the statements of the passenger in reference to and contradictory of the ticket presented to and relied on by him." But it was also held in the same case that, where the ticket does not purport to be and is not the complete agreement between the carrier and the passenger, supplementary evidence is competent to show what was the real contract indicated by the ticket. In the case at bar it must be taken as true, because so testified by appellee and not contradicted, that he ordered of appellant's ticket agent at McBrayer and paid for a ticket which entitled him to be carried as a passenger on appellant's railroad from that place to Harrodsburg on Sunday, September 14th, and to be returned from the latter city to McBrayer on Monday, the 15th, though he did not examine the ticket while in his possession to see that it in terms conformed to the contract. It is also true that the ticket agent knew when he sold appellee the ticket that it was to be used on the train that night, and that there would be no other upon which he could that day return to McBrayer. It is likewise true that the ticket, when presented to appellant's conductor by appellee on Monday, September 15th, showed that it was not good after the 14th, as the conductor told him; but it does not satisfactorily appear from the evidence whether the punch mark on the return part of the ticket, showing it expired on the 14th, was made by the ticket agent when...