The St. Louis v. Thornton Y. South.

• Decision Date: 31 January 1867
• Parties: THE ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANYv.THORNTON Y. SOUTH.
• Court: Illinois Supreme Court

43 Ill. 176

1867 WL 5002 (Ill.)

92 Am.Dec. 103

THE ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANY

v.THORNTON Y. SOUTH.

Supreme Court of Illinois.

January Term, 1867.

APPEAL from the Circuit Court of Coles county; the Hon. OLIVER L. DAVIS, Judge, presiding.

This was an action of trespass, brought by the appellee in the Circuit Court of Coles county, against the appellants, Frederick Austin, Charles Rhodes, Lorenzo Lee and Edward Dawson. The cause was tried before a jury at the April Term, 1866, of said court, and a verdict of guilty rendered against the defendants, and damages assessed severally against them. Whereupon, a nolle prosequi was entered as to all the defendants except appellant, and judgment was entered against it for $300. Motions for a new trial and in arrest of judgment were made, which the court severally overruled, and thereupon an appeal was taken to this court.

The facts necessary to an understanding of the questions presented to this court for its decision, are stated in the opinion.

Messrs. WILEY & PARKER, for the appellants.

Mr. JOHN SCHOLFIELD, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:

The principal questions in this cause arise upon the instructions given on behalf of the plaintiff, and on those refused as asked by the defendants, the appellants here, and on the measure and amount of damages, the former of which we will notice.

The first instruction asked by the plaintiff, and given, was this:

“It was the duty of the St. Louis, Alton and Terre Haute Railroad Company to furnish a convenient and accessible place for the sale of tickets for passengers, with a competent person in attendance ready to sell them, which should be open and accessible to all passengers for a reasonable time before the departure of each train, and up to the time of its actual departure; and if the jury believe from the evidence that the plaintiff, by and through Allison, made application at the ticket-office of the St. Louis, Alton and Terre Haute Railroad Company, at Mattoon, for a ticket from that place to Charleston, at any time within ten or fifteen minutes before the actual departure of its train, and he was unable to get a ticket in consequence of the ticket-office being closed, then the St. Louis, Alton and Terre Haute Railroad Company had no right to charge him upon the train any more than usual ticket price between Mattoon and Charleston.”

The first instruction asked on behalf of the defendants and refused, was as follows:

“That if they find from the evidence that the defendant, St. Louis, Alton and Terre Haute Railroad Company, has a convenient and accessible office, supplied with and for the sale of tickets in Mattoon; that on the evening of the alleged trespass the same was open, with a competent person in attendance to sell tickets for an hour before and up to the expiration of the time fixed by public notice for the departure of the train on which plaintiff took passage; that the plaintiff got upon said train to travel from Mattoon to Charleston without procuring a ticket and refused to pay, or cause to be paid, to the conductor of said train the amount of fare or passage money required by the regular tariff of said company for passengers who fail to produce tickets, and that by reason of such failure of plaintiff to pay or cause to be paid such fare or passage money he was expelled from the cars of said company by the servants or employees of said company at a regular station on said railroad, then in that case the jury must find the defendants not guilty.” The point of difference is obvious. While the instruction for the plaintiff requires the ticket-office to be kept open up to the time “of the actual departure of the train,” that for the defendant limits that duty “to the expiration of the time fixed by public notice” for the departure of the train.

It is insisted by the appellee, that the law is as declared in the instruction given in his behalf, and has been so held by this court in the case of the Chicago, Burlington and Quincy Railroad Company v. Parks, 18 Ill. 460, and reiterated in St. Louis, Alton and Chicago Railroad Company v. Dalby, 19 Id. 364, and that the instruction is an exact transcript of the language of this court, in the cases cited.

In this the counsel is not mistaken. In the case first cited, this court said: “To justify a railroad company in making a discrimination in the fare against the passenger who neglects to purchase a ticket at the company's office, the company must see to it that the fault was not that of its own agent instead of the passenger. To justify this discrimination, every reasonable and proper facility must be afforded to the passenger to procure his ticket. They must furnish a convenient and accessible place for the sale of the tickets, with a competent person in attendance ready to sell them, which should be open and accessible to all passengers for a reasonable time before the departure of each train and up to the time of its actual departure, so that it shall really be a case of neglect and not of necessity on the part of the passenger, and not the fault of the company.” Further on, in the next paragraph but one, the court call...