The Chicago, St. Louis and Pittsburgh Railroad Company v. Bills

• Decision Date: 23 November 1885
• Docket Number: 11,702
• Citation: 3 N.E. 611,104 Ind. 13
• Parties: The Chicago, St. Louis and Pittsburgh Railroad Company v. Bills
• Court: Indiana Supreme Court

3 N.E. 611

104 Ind. 13

The Chicago, St. Louis and Pittsburgh Railroad Company v. Bills

No. 11,702

Supreme Court of Indiana

November 23, 1885

From the Madison Circuit Court.

Judgment is reversed.

N. O Ross, for appellant.

M. S Robinson, J. W. Lovett and C. D. Thompson, for appellee.

OPINION

Elliott, J.

The appellee alleges in his complaint, that the appellant owns and operates a line of railroad extending through the counties of Madison and Tipton, in this State, and that it is engaged in the business of transporting freight and passengers for hire; that Elwood, in Madison county, and Curtisville, in Tipton county, are each stations at which passengers and freight are received and discharged; that in September, 1883, the appellee was engaged in the business of buying and selling live-stock, and had in the pens of the appellant at Curtisville "forty head of cattle," ready for shipment; that he desired to go from Elwood to Curtisville for the purpose of shipping the cattle, and bought from the appellant's agent at the former station a ticket for Curtisville; that he entered one of the passenger trains of the appellant, presented his ticket to the conductor, who informed him that the train would not stop at Curtisville; that the conductor refused to receive the ticket and ejected the appellee from the train. There are allegations as to the manner in which the conductor ejected the appellee, of which we shall speak at another place.

The appellant's counsel assumes that the complaint is constructed upon the theory that the appellee was wrongfully ejected from the train, and, proceeding upon this assumption, asserts that the complaint is bad because it does not aver that the rules of the company provided that the train entered by the appellee should stop at the station for which he took passage. The appellee's counsel contest the assumption of appellant, and affirm that the theory upon which the complaint proceeds is, that the conductor used unnecessary force in ejecting the appellee from the train.

We have no doubt that the law is, that if the conductor uses unnecessary force in ejecting a passenger, the company is liable, although the conductor may have a right to eject him and to employ reasonable force to expel him from the train. McClure v. Philadelphia, etc., R. R. Co., 34 Md. 532 (6 Am. R. 345); Shedd v. Troy, etc., R. R. Co., 40 Vt. 88. This is but the application of an old principle, old as the law itself, to a modern instance; for it has ever been the law that no man has a right to employ unnecessary force in doing any act. While it is true that a conductor may not use unnecessary force to eject a passenger, it is also true that he may employ reasonable force to accomplish that object. The degree of force is determined, not by results simply, for other facts must be taken into consideration, and chief among such facts is the resistance made by the passenger. It is obvious that a passenger who makes no resistance can not lawfully be treated like one who does resist the commands and efforts of the conductor. Resistance may make great force necessary and reasonable; while acquiescence in the directions of the conductor may render any degree of force unnecessary and unreasonable. If words will accomplish the object, force should not be employed.

The use of unnecessary force is unlawful. He who constructs a complaint upon the theory that unnecessary force was used in expelling a passenger from a railroad train, proceeds upon the ground that an unlawful act was committed. One who bases his cause of action upon the performance of an unlawful act must affirmatively show it to be unlawful; the appellee does base his cause of action upon the performance of an unlawful act, and it therefore devolves upon him to show that it was unlawful. Acts can not be shown to be unlawful by epithets facts alone can have this effect. The result of these principles is, that this complaint can not be good upon the theory assumed by the appellee unless it states such facts as show that the act of the appellant's conductor was unlawful. In order to show that the act was unlawful, it is essential to state facts showing that unnecessary force was employed in ejecting the appellee from the train. In our opinion no such facts are stated. These are the averments of the complaint upon this point: "That the conductor stopped the train and put the plaintiff off the train, beside the road, about one mile from Elwood. And the plaintiff further alleges that he is so afflicted with a disease called hernia, that he is compelled to wear a truss, and that, in putting him off the train, the conductor used so much force and violence that he broke his truss and rendered it entirely useless, and the conductor also threw him violently to the ground and greatly bruised and wounded him." These allegations do show that force was used, but they are far from showing that it...