Tomlinson v. Wilmington & Sea-coast R. Co

• Decision Date: 17 November 1890
• Citation: 12 S.E. 138,107 N.C. 327
• Court: North Carolina Supreme Court
• Parties: Tomlinson. v. Wilmington & Sea-Coast R. Co.

107 N.C. 327

12 S.E. 138

Tomlinson.

v.Wilmington & Sea-Coast R. Co.

Supreme Court of North Carolina.

Nov. 17, 1890.

Exemplary Damages — Ejection or Passenger.

A passenger is not entitled to exemplary damages for an unlawful ejection from a railroad train, accomplished without undue force, or unnecessary harshness, and unaccompanied by insult, malice, or willful wrong.

This was a civil action, tried at the May term, 1890, of the superior court of Cumberland county before Brown, J. The plaintiff was ejected from defendant's car by the conductor for refusing to pay an extra charge for neglect to buy a ticket at the station. The plaintiff testified in reference to the manner and conduct of the conductor at the time when he was compelled to leave the train, as follows, viz.: "I first offered twenty-five cents for a round-trip ticket. He refused. I then offered twenty-five cents for a single-trip ticket from Wrightsville to Wilmington. He refused, and demanded the extracharge for not having a ticket, which I refused to pay. I cannot state any word the conductor used. He did not touch me or McLaughlin. He used no insulting language. He stopped the train and told us we must get off, and we did so. I thought he was harsh and ungentle manly." Question by the Court: "State any violent act or any rudeness or insult offered by the conductor." Plaintiff replied: "Conductor did not touch me, or use any improper language. Only told us we would be compelled to leave the train, or pay full fare demanded by him. We were made to leave the train near the place called the 'Commissary, ' and walk to Wilmington." W. G. McLaughlin testified in behalf of plaintiff in reference to the same matter as follows: "Conductor said, if we did not pay regular fare, he would stop the train and put us off. Conductor did not use any insulting language, or touch either of us. He only said, if we did not get off, he would put us off. He told us not to get up behind the train. Conductor did not touch either of us. We got off after what he said. I thought he was harsh towards us. He did not use any profane or insulting language, spoke in usual voice, but said repeatedly that we must get off, or pay regular fare demanded by him." The plaintiff offered no other testimony as to the manner, language, or acts of the conductor at the time of putting him and his companion off the train. The conductor testified in behalf of defendant in relation to the same transaction, among other things, as follows: "Plaintiff refused to pay twenty-five cents, and told me to put him off. I offered to pay fare for him. He said he did not want me to do so, and told me to stop the train, and he would get off. I stopped the train about one hundred yards from a small regular station. Many other persons got off at the same place. It was five miles from Wilmington. The company were selling to soldiers special tickets to soldiers in uniform at twenty-five cents, but the plaintiff had on no uniform, nor any soldier's ticket. The regular fare was twenty-five cents one way, and...