Tarr v. Oregon Short Line R. R. Co.

• Decision Date: 31 January 1908
• Citation: 14 Idaho 192,93 P. 957
• Parties: JACOB E. TARR, Respondent, v. OREGON SHORT LINE R. R. CO., Appellant
• Court: Idaho Supreme Court

93 P. 957

14 Idaho 192

JACOB E. TARR, Respondent, v. OREGON SHORT LINE R. R. CO., Appellant

Supreme Court of Idaho

January 31, 1908

ACTION FOR TORT-EJECTION FROM RAILWAY TRAIN-PASSENGER RIGHTFULLY ON TRAIN-REFUSAL OF RAILROAD COMPANY TO FURNISH PASSENGER BAGGAGE CHECK-LIABILITY OF COMPANY FOR FAILURE TO FURNISH CHECK-ALLOWANCE OF DAMAGES FOR PHYSICAL PAIN, MENTAL SUFFERING AND HUMILIATION-SPECIAL DAMAGES FOR LOSS OF TIME-INSTRUCTIONS TO JURY.

1. Under the provisions of sec. 2674, Rev. Stat., a railroad corporation doing business in this state is required to affix a check to every parcel of baggage received by it, and to deliver a duplicate thereof to the passenger or person delivering the same, and if such check is refused on demand therefor, the railroad company is liable in the sum of $20 to such person and, in addition thereto, cannot collect any fare or toll from such passenger.

2. Where a railroad company has no night agent at a station to receive and check baggage, but stops its train at such station and takes on a passenger and his baggage, and after the passenger boards the train and demands a check for his baggage, and declines to pay his fare or deliver up his ticket until he receives such check, and the employees of the company in charge of the train neglect and refuse to deliver a baggage check, and, on the contrary, eject the passenger from the train, the railroad company will be held liable in damages for the tort so committed.

3. Where a passenger purchases a ticket, and on the arrival of the train at the station points out to the conductor and brakeman his baggage, and they receive the same and take it on board the train, and the passenger boards the same train for the purpose of transportation to another station on the line of the company's road, and demands of the conductor on the train a baggage check, he is entitled to receive such check before delivering up his ticket or paying his fare, and on failure to receive such baggage check and refusal to pay his fare until he does receive it, he does not thereby become a trespasser on such train, and the employees of the company have no right to eject him from the train until they have either delivered to him his baggage check or until he has reached the station to which he notified the employees receiving the baggage that he desired the same checked.

4. Under the provisions of sec. 2674, the liability to furnish the passenger free transportation to the point of his destination in case of refusal to deliver him a check for his baggage is as much a part of the penalty for refusal to check the baggage as is the $20 cash penalty named therein.

5. The requirement of sec. 2674, Rev. Stat., that a railroad company shall not collect toll or fare from a passenger when it fails, neglects or refuses to deliver the passenger a check for his baggage, is valid and binding upon such company as a part of the penalty for its failure and neglect to comply with the statute, and is in no sense a taking of property without due process of law within the inhibition of the fourteenth amendment to the constitution of the United States.

6. The instruction, "That every particular phase of the injury may enter into the consideration of the jury in estimating compensation, loss of time with reference to the injured party's condition and ability to earn money, his loss from permanent impairment of faculties, mental and physical pain, suffering and disfigurement, are all elements to be considered by the jury in estimating plaintiff's damages," while correct as a general principle of law is erroneous in a case where there is no allegation of loss of time and no evidence has been introduced showing the loss of any particular or specified time or the value thereof or amount of damage sustained by reason of loss of time.

7. Where the court has instructed the jury that they must be governed by the evidence in assessing damages, and that they must find the data therefor within the evidence, and the entire record in the case discloses that no claim has been made for damages on account of loss of time, and no evidence has been introduced thereon, and it is reasonably clear from the record that the jury did not consider such element in assessing damages, an erroneous instruction to the effect that loss of time is a proper element to be considered in such cases is not within itself such error as will cause a reversal of the judgment.

8. It is unnecessary to submit any evidence as to a proper and just compensation to be awarded for wounded feelings and physical and mental pain and suffering and humiliation, but the compensation to be allowed therefor is a matter addressed to the judgment and good sense of the jury, and to be determined by them in view of all the evidence submitted in the case as to the wrongs and injuries inflicted.

9. All the instructions given in a case must be read and considered together as a whole, and where they are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the instructions as a whole rather than to an isolated portion thereof.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District for the County of Bingham. Hon. J. M. Stevens, Judge.

Action by the plaintiff in tort for damages sustained on account of the wrongful acts of the defendant company in ejecting him from its railway train. Judgment for plaintiff, and defendant moved for a new trial and appealed from the judgment and order denying his motion. Affirmed.

Judgment affirmed with costs in favor of respondent.

P. L Williams, and D. Worth Clark, for Appellant.

The construction of sec. 2374, Rev. Stat., contended for by respondent, is in violation of the fourteenth amendment of the federal constitution, because it would be depriving a railroad company of property without due process of law, and denying it equal protection of the laws. It would be compelling a railroad company to carry a person without reward, and would be upon principle subject to the same objections as a regulation of fares and freights on the part of the state, which required a railroad company to carry persons and property without reward. (Cooley on Const. Law 261; Railroad Commission Cases, 116 U.S. 307, 331, 6 S.Ct. 334, 348, 349, 388, 391, 1191, 29 L.Ed. 636; Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819.)

If the respondent was justified in refusing to surrender his ticket until he received his baggage check, his proper remedy for such ejection would seem to be an action for breach of contract to carry, and not an action in tort, upon the same principle that is applied in cases where a passenger refused to pay fare or surrender his ticket until he is furnished a seat. (St. Louis etc. Ry. Co. v. Leigh, 45 Ark. 368, 53 Am. Rep. 558; Memphis etc. R. Co. v. Benson, 85 Tenn. 627, 4 Am. St. Rep. 776, 4 S.W. 5.)

If we concede that respondent was wrongfully ejected, and that he is entitled to sue in tort, $ 1,000 is flagrantly excessive. (Tarbell v. Central P. R. R., 34 Cal. 616; Southern R. R. v. Hawkins, 28 Ky. Law Rep. 364, 89 S.W. 258; Mobile etc. R. R. Co. v. Reeves, 25 Ky. Law Rep. 2236, 80 S.W. 471; Sloan v. So. Cal. Ry. Co., 111 Cal. 668, 44 P. 320, 32 L. R. A. 193; Willson v. Northern P. R. R. Co., 5 Wash. 621, 32 P. 468, 34 P. 146; McLean v. Chicago etc. R. R. Co., 50 Minn. 485, 52 N.W. 966; Finch v. Northern P. R. R. Co., 47 Minn. 36, 49 N.W. 329; Cunningham v. Seattle etc. R. R. Co., 3 Wash. 472, 28 P. 745.)

The court's instruction concerning loss of time with reference to the injured party's condition and ability to earn money in his business or calling was error, being neither pleaded nor proven. (Gardner v. Burlington etc. R. R. Co., 68 Iowa 588, 27 N.W. 768; Fisk v. Chicago etc. R. R. Co., 74 Iowa 424, 38 N.W. 132; Elenz v. Conrad, 115 Iowa 183, 88 N.W. 337; La Faye v. City of Superior, 104 Wis. 454, 80 N.W. 742; Haworth v. Kansas City etc. R. R. Co., 94 Mo.App. 215, 68 S.W. 111; Texas etc. R. R. v. Goldman (Tex. Civ. App.), 51 S.W. 275; International etc. Ry. Co. v. Lock (Tex. Civ. App.), 20 S.W. 855; Southern R. R. Co. v. Hawkins, 28 Ky. Law Rep. 364, 89 S.W. 258.) The same is true of that part of the instructions concerning loss from permanent impairment of faculties and disfigurement. (Comaskey v. Northern P. R. R. Co., 3 N.D. 276, 55 N.W. 732; Jackson v. City of Knoxville (Iowa), 101 N.W. 88; Goken v. Dallugge, 72 Neb. 16, 99 N.W. 818, 101 N.W. 244, 103 N.W. 287; Western Union Tel. Co. v. Morris, 83 F. 992, 28 C. C. A. 56.)

Instructions similarly unwarranted were held erroneous in the following cases: Barron v. Northern P. R. R. Co. (N. D.), 113 N.W. 102; Platt v. City of Ottumwa (Iowa), 113 N.W. 831; Reed v. Chicago etc. R. R. Co., 57 Iowa 23, 10 N.W. 285; Stafford v. City of Oskallosa, 57 Iowa 748, 11 N.W. 668; Cousins v. Lake Shore etc. R. R. Co., 96 Mich. 386, 56 N.W. 14; Eckerd v. Chicago etc. R. R. Co., 70 Iowa 353, 30 N.W. 615; Meyer v. Reimer, 65 Kan. 822, 70 P. 869; Ringue v. Oregon etc. Co., 44 Ore. 407, 75 P. 703; Chicago etc. R. R. Co. v. Wheeler, 70 Kan. 755, 79 P. 673; Farmer v. Hughes, 38 Colo. 318, 88 P. 191; Atchison T. & S. F. R. R. v. Adcock, 38 Colo. 369, 88 P. 180; First Nat. Bank v. Skinner, 10 Kan. App. 517, 62 P. 705; Holt v. Spokane & Palouse Ry. Co., 3 Idaho 703, 35 P. 39; Gwin v. Gwin, 5 Idaho 217, 48 P. 295; St. Louis etc. Co. v. Blinn, 10 Kan. App. 468, 62 P. 427.

G. F. Hansbrough, for Respondent.

Respondent was not compelled to surrender either of his tickets after demanding a check for his baggage; until the check was given to him all that he was called upon to do was to show them to the conductor, which he did do. Having shown that he had a right on the...