Yorton v. Milwaukee, Lake Shore & W. Ry. Co.

• Decision Date: 07 February 1882
• Citation: 11 N.W. 482,54 Wis. 234
• Parties: YORTON v. MILWAUKEE, LAKE SHORE & WESTERN RY. CO.
• Court: Wisconsin Supreme Court

54 Wis. 234

11 N.W. 482

YORTON

v.MILWAUKEE, LAKE SHORE & WESTERN RY. CO.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from county court, Milwaukee county.Nathaniel Pereles & Sons and E. P. Smith, for respondent.

Cottrill, Cary & Hanson, for appellant.

COLE, C. J.

It is an admitted fact that the plaintiff purchased a ticket at Marion for transportation over the defendant's road to Oshkosh, and took the train at the former place. For the purposes of this appeal it is assumed that he delivered that ticket to the first conductor, Sherman, and asked for a layover ticket at Clintonville, an intermediate station, and that through the fault or mistake of the conductor he received a trip or train check instead of a stopover ticket, which he asked for, and which the conductor undertook to give him. It may further be assumed that he was not bound to read the check, and was guilty of no negligence in not reading it, though it would certainly have notified him that it only entitled him to ride on that train, and then have called the attention of the conductor to the mistake he had made.

These facts being assumed in the plaintiff's favor, we may further assume that his account of the circumstances attending his ejection from the train is, in the main, correct. He says, in substance, the next morning, when he took another train at Clintonville, under charge of another conductor, when asked for his ticket he presented the check which Sherman had given him. The second conductor properly told him that he could not ride on his train on that check; that it was only good with Sherman; and that he must either pay his fare to Oshkosh or leave the train. This was said to the plaintiff while upon the cars at Clintonville, before the train started, and while he had ample opportunity to leave the train. Indeed, the plaintiff testified that this same conversation was repeated before the train started from Clintonville, the conductor all the time telling him that the check gave him no right to ride on his train, that he must either pay his fare or leave the train, while he asserted his right to go on that train, because he had once paid his fare. Thus the matter stood when the train left Clintonville, the plaintiff remaining on the cars, and, as the train approached the next station, upon his fare being again demanded by the conductor, and refused, he was forcibly ejected from the train at the Bear Creek station, more than six miles from Clintonville. He was left at the station at about 3:30 o'clock in the morning on the twenty-eighth of October; the depot was closed, and he was unable to obtain shelter; he was exposed to cold, damp winds, contracted a violent cold, and became sick. This exposure and sickness resulting from being ejected from the train at the time and in the manner he was, constituted his principal claim for damages.

On the question of damages the learned county court charged the jury that if they found the facts relating to the purchase and surrender of the ticket by the plaintiff, and his expulsion from the train, to be as detailed by the plaintiff's witnesses, that then the plaintiff was entitled to recover full compensatory damages for the defendant's acts; that in assessing such damages the plaintiff was entitled to recover not only for the mere pecuniary loss and expense, loss of time, and inability to attend to his business directly resulting from said acts, but also bodily suffering, mental pain, and disquietude, and the sense of injury and humiliation felt from the indignity inflicted in being so unjustly expelled from the cars; that this would include all bodily ailments, lameness, suffering, and fatigue resulting from his being so ejected, or from the exposure to the weather in the night; that in considering the question of damages the jury might take into account the manner and time of the plaintiff being ejected from the cars, the situation and surroundings of the place where he was so ejected, and all circumstances which had been shown going to aggravate the injury, and assess full damages therefor.

This is the substance of the charge on the question of damages, and it manifestly goes upon the hypothesis that the plaintiff had a right to ride upon the train on the facts detailed by him, and that his expulsion therefrom was unlawful. In this view we think the learned county court erred. The learned counsel for the defendant insists that no claim for any damages whatever was shown or established. He says the ticket first bought was for a continuous passage from Marion to Oshkosh, and that as the plaintiff voluntarily left the train at Clintonville the company was under no obligation to give him a stopover check or transport him on another train. But the conductor, Sherman, testified that he was accustomed to give these stop-over checks when requested by passengers, and he was doubtless authorized to give them. The reason why he did not give one to the plaintiff when he took up his through ticket, he says, was because the plaintiff did not ask for one, being then uncertain whether he would stop at Clintonville or not, consequently he gave him a trip or train check only. This was Sherman's understanding in the matter, and a stop-over check was not given because it was not asked for, and not for the reason that it was unusual to give them. So that, without attempting to settle the conflict in the testimony upon this point, we assume that a stop-over check was asked for by the plaintiff when he surrendered his ticket, and that it was the conductor's fault that he did not receive one.

Then the question arises, was the plaintiff entitled to ride on a subsequent train, not having a proper stop-over check, or was the second conductor justified under the circumstances in putting him off the train when he refused to pay his fare? The court below held that a rule or regulation of a railway company requiring passengers who ride upon its trains to procure from the conductor, or person in charge of the train, a stop-over check if they desired to stop before concluding their journey or before reaching the...