Wightman v. Chi. & N. W. Ry. Co.

• Court: Wisconsin Supreme Court
• Citation: Wightman v. Chi. & N. W. Ry. Co., 73 Wis. 169, 40 N.W. 689 (Wis. 1888)
• Decision Date: 04 December 1888
• Parties: WIGHTMAN v. CHICAGO & N. W. RY. CO.

73 Wis. 169

40 N.W. 689

WIGHTMAN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from circuit court, Juneau county; ALVA STEWART, Judge.

It appears from the pleadings, and is admitted, that April 15, 1886, the plaintiff purchased of the defendant at its depot in Elroy, and paid for, what is known as a “round-trip ticket” from said Elroy to Wonewoc and return; that one-half of said ticket was white, and upon that half were the words and figures: “R. T. Going. Elroy to Wonewoc, 9-8986. 2563. Not good for passage;” and the other half of the ticket was red, and upon that were the words and figures: “2563. C. & N. W. Ry. R. T. Returning. Wonewoc to Elroy. W. A. Thrall, Gen'l. Ticket Agt. if detached.” The words “Not good for passage” were on a line with the words “if detached.” It is also conceded that July 26, 1886, the plaintiff, at Elroy, boarded one of the defendant's way freight trains, with a caboose attached for passengers to ride in, then on its way southerly through Wonewoc; that, after said train started from Elroy with the plaintiff on board, the conductor in charge demanded fare of the plaintiff, who thereupon tendered the conductor the ticket mentioned, which the conductor refused to receive; that, upon the plaintiff's refusal to pay fare, the conductor stopped the train, and caused the same to run back to Elroy station, where the plaintiff was compelled to leave the train. This action is for damages by reason of such expulsion. The following rules of the defendant, in force at the time of the occurrence, are in evidence: “Rule 46. Passengers must not be ejected from the cars for any cause except at a station. Use no unnecessary force. Rule 47. Wood or construction trains must in no case carry passengers. Freight trains must not carry passengers without tickets.” The evidence is in conflict as to whether the plaintiff presented to the conductor the red half of the ticket, as well as the white half, when he first demanded fare, or not until after the train was stopped; and also as to some of the facts and circumstances attending such refusal of the conductor to receive the ticket, the refusal of the plaintiff to pay fare, and the ejecting of the plaintiff from the train. At the close of the trial the jury returned a special verdict, to the effect (1) that the plaintiff had “the round-trip ticket from Elroy to Wonewoc and return given in evidence, No. 2563,” on July 26, 1886, and above described; (2) that the plaintiff on that day entered the caboose of the defendant's freight train, which carried passengers, at Elroy, for the purpose of being carried therein from Elroy to Wonewoc on said ticket; (3, 4) that said ticket was broken apart and separated at the place where punctured for the purpose of separation, before it was offered to the conductor for passage, (5, 6) but not by nor with any carelessness or negligence of or on the part of the plaintiff; (7) that when the conductor first came to the plaintiff to collect his fare the plaintiff produced and exhibited to him both the going and returning part of said ticket, (8) and not the going part only; (9) that the plaintiff did not omit to produce and exhibit to the conductor both parts of said ticket until after the conductor had stopped the train to back up to Elroy; (10) that the plaintiff left the train by order of the conductor; (11) that the conductor refused to carry the plaintiff on said ticket, because it was not a good and valid ticket, (12) through an unintentional mistake on his part as to its validity; (13) that the plaintiff still holds said ticket, and both parts thereof, without having offered to return them to the defendant; (14) that the conductor called the plaintiff a liar before the plaintiff called him a liar; (15) that the plaintiff's damages are assessed at $300; (16) that in estimating such damages they gave him $299.54 for injury to his feelings. Thereupon the court ordered judgment for the plaintiff upon said special verdict for the sum of $299.60, being the amount of damages assessed by the jury, less the sum of 40 cents paid for the ticket, for which the court held that the plaintiff was not entitled to recover in this action. From the judgment entered thereupon accordingly the defendant brings this appeal.Jenkins, Winkler & Smith and C. H. Van Alstine, for appellant.

B. C. Smith and F. S. Veeder, for respondent.

CASSODAY, J., ( after stating the facts as above.)

When the jury first announced their verdict, the answer to the fifteenth question was $300, and the answer to the sixteenth question was, in effect, nothing, instead of the amounts above stated. The court thereupon intimated to the jury that such findings were inconsistent with themselves; that the jury had failed to observe the instructions of the court; that by reason thereof they were at liberty to go to their room for further consultation; that if they meant to answer as they had indicated, then, when they came in, they should say so. Thereupon the counsel for the defendant asked to have the jury polled, to see if that was in fact their verdict; but the court declined, for the time being, to receive such verdict, until the jury should go to their room for consultation; that the court thereupon indicated the nature of some of the instructions which had previously been given to them; that no opinion had been intimated to them as to whether they should find anything for injury to feelings or not; that that question was left entirely to them. The defendant's counsel thereupon requested the court to receive and record such verdict, which was refused, and the jury thereupon retired for further consultation. Upon returning into court they answered the fifteenth question, 46 cents, and the sixteenth, $300; and thereupon the court, for the same reasons, again refused to receive said verdict, and ordered the jury to again retire, for further consultation, which they did; and thereupon they again returned into court with the verdict complete and substantially as found in the above statement of facts; and the same was thereupon received by the court, and entered of record. The jury had been told in the general charge, in effect, that if they found for the plaintiff, and that he was entitled to damages for injury to his feelings, then, in answering the fifteenth question, they should state the total amount of damages allowed; as for loss of time, which should be “simply nominal,--six cents,” and damages for injury to his feelings, and the amount he paid for the ticket, in one general sum; and then, in answer to the sixteenth question, that they should “state what damages,” if any, “he suffered for injury to his feelings.” It is manifest that the jury misapprehended these instructions until their last consultation. The learned trial judge scrupulously avoided anything like dictation...