The Baltimore and Ohio Railroad Company v. Norris

• Decision Date: 11 March 1897
• Docket Number: 2,092
• Citation: 46 N.E. 554,17 Ind.App. 189
• Parties: THE BALTIMORE AND OHIO RAILROAD COMPANY v. NORRIS
• Court: Indiana Appellate Court

46 N.E. 554

17 Ind.App. 189

THE BALTIMORE AND OHIO RAILROAD COMPANY v. NORRIS

No. 2,092

Court of Appeals of Indiana

March 11, 1897

From the DeKalb Circuit Court.

Affirmed.

J. H Collins and James E. Rose, for appellant.

S. A Wood, Daniel M. Link, John F. Shuman and Frank S. Roby, for appellee.

OPINION

BLACK, J.

The appellee sued the appellant and recovered judgment for $ 150.00, for the acts of a conductor upon appellant's passenger train, into one of the cars of which the appellee had gone for the purpose of traveling from appellant's station at Garrett to its station at Albion, the alleged wrongs complained of being the assaulting of the appellee with force and violence while in said car, and the act of said conductor in ejecting the appellee from said train with unnecessary force, at night, at a dangerous place, away from any dwelling, station or stopping place, said conductor accompanying his acts with opprobious and indecent epithets applied to the appellee in the presence and hearing of other passengers.

The argument on behalf of appellant is so general in its character that it is not quite clear that any portion of it should be treated as relating properly to the assignment that the court erred in overruling the demurrer to the complaint.

In the course of the argument in appellant's brief, however, it is said: "If the complaint or the evidence had either shown that the appellee was lawfully upon the train, then the complaint would have been sufficient; otherwise not."

The complaint contained two paragraphs, the second of which alleged many facts in addition to those alleged in the first, and amongst other things, showed, in substance, that the appellee having been prevented by the fact that the ticket office was closed from purchasing a ticket or ascertaining at what places the train stopped to receive and deliver passengers after leaving Garrett, and having seated himself in the car, and taken passage thereon, he tendered to the conductor, when he came through the car, payment of the regular cash fare charged by the appellant for transportation between said towns; that he was then informed and for the first time learned that the train did not stop to take on and deliver passengers at Albion; that he thereupon offered to pay and tendered to the conductor payment of the regular cash fare charged by the appellant from Garrett to the first regular stopping place of the train, before he was ordered to leave the train, and before any active steps had been taken to eject him therefrom; that the conductor wrongfully refused to receive said fare; that by the rules and regulations of the appellant the train was scheduled to stop at the town of Walkerton to discharge passengers, and that the appellee offered to pay his fare to that town, but the appellant wrongfully refused to receive said fare, or to transport him to that town, but wrongfully and unlawfully ejected him from the train, etc.

The first paragraph contained an allegation that after the appellee offered and tendered to the conductor the regular cash fare charged by the appellant for transportation between Garrett and Albion, the appellant by its said conductor with force and violence assaulted the appellee.

If the first paragraph did not show the appellee to be entitled to be considered a passenger, but showed him to be a trespasser, still the appellant was bound not to injure him willfully.

In Lake Erie, etc., R. R. Co. v. Matthews, 13 Ind.App. 355, 41 N.E. 842, this court said: "The wrong charged is in the nature of a willful injury, and if the appellee was guilty of negligence or was even guilty of being a trespasser, a willful or wanton injury, would not be justifiable. If the appellee was not entitled to ride upon the train, the conductor should have requested him to alight. It was time enough to resort to force and violence when the same became necessary."

Very many authorities might be cited to the same effect.

If it could be held that the second paragraph did not proceed upon the theory of an unlawful expulsion, and did not show the appellee to have been a passenger, but, on the contrary, showed him to have been a trespasser, that paragraph could not, on that account, be held insufficient; for it was alleged therein that the appellee used no force in resisting ejectment, but in all things conducted himself in an orderly, proper and law-abiding manner, and that the conductor, in ejecting him, used unnecessary force, and accompanied his acts with opprobious and indecent language and epithets, which he applied to the appellee in the presence and hearing of a number of persons in the car; that the appellee was greatly humiliated and mortified thereby, and put in great anxiety of mind; and that he was disgraced in the eyes of the persons who heard said language and were not familiar with the facts.

All such injury is willful, and being inflicted by the conductor while acting within the scope of his authority, the appellant would be liable therefor, whether the injured person were a passenger or a trespasser.

It is said in the recent valuable work, Elliott on Railroads, section 1255, that the company may be held liable, "although the injured person be a trespasser, if its employes, while acting within the scope of their actual authority, willfully injure him or eject him with unnecessary force and violence."

In Chicago, etc., R. R. Co. v. Bills, 118 Ind. 221, 20 N.E. 775, in the original complaint the plaintiff sought to recover for injuries sustained to his person and property while being wrongfully expelled from the defendant's cars. An amended complaint counted upon a right to recover for injuries suffered by being expelled from the train with unnecessary force. It was said by the court: "Both complaints involve the same transaction. The gravamen, or substantial grievance complained of in both, is the personal injury suffered by the plaintiff in being ejected from the defendant's train. The original complaint proceeded upon the theory that the plaintiff sustained an injury to his person by being wrongfully expelled from a train on which he had a right to be. The amended complaint is predicated upon the same transaction and injury, but proceeds upon the theory that the plaintiff may have been wrongfully or carelessly on the train, and that he was ejected therefrom with unnecessary force, to his injury. The first complaint was more comprehensive than the last, and embraced elements of damage which were not in the amended complaint, but the last embraced nothing that was not covered by the first."

In the same case it is said by the court, that expulsion from a train with excessive force and violence is equivalent to an assault and battery, and that no degree of carelessness on the part of the person assaulted furnishes any excuse for an unlawful invasion of the right of personal security.

A railroad company is liable to one who has been ejected...