Statement of the Case. place. The conductor refused to take it and demanded full fare. The payment of this being refused, the conductor stopped the train at the next station and ejected him from it, using such force as was necessary. Held, (1) That he was rightfully on the train at the time of his expulsion; (2) That the conductor had no right to put him off for not paying his fare; (3) That the company was liable for the act of the conductor; (4) That the passenger had a right to refuse to be ejected from the train, and to make a sufficient resistance to being put off to denote that he was being removed against his will by compulsion; (5) That the fact that under such circumstances he was put off the train was, of itself, a good cause of action against the company, irrespective of any physical injury he might have then received, or which was caused thereby. When the trial court has, in its general charge, given the substance of instructions requested, there is no error in refusing to give them in the language requested. It is not the province of this court to determine whether a verdict was excessive. THE Court stated the case as follows: This was an action by David T. Winter, a citizen of Massachusetts, against the New York, Lake Erie and Western Railroad Company, a New York corporation, to recover damages for having been put off the defendant's train while a passenger thereon between Binghamton and Salamanca, New York. It was commenced in a state court of Massachusetts, and was afterwards, upon the application of the defendant, removed into the proper Federal court, on the grounds of diverse citizenship and of local prejudice and influence. Several other railroad companies that were supposed to have property or funds in their hands belonging to the principal defendant were made parties defendant, as trustees or garnishees. The declaration contained two counts. In the first it was alleged that on February 13, 1882, the plaintiff, being the owner of an unlimited first-class ticket entitling him to carriage on the defendant's road from Binghamton to Salamanca, took passage on the defendant's train at the former place to be carried to the latter; that between Binghamton and Olean (a station on the road between Binghamton and Salamanca) Statement of the Case. the defendant's agent in charge of the train punched his ticket, at his request, so that he was entitled to "stop over” at Olean, and returned it to him; that he did stop over at Olean, and the next day took a train on defendant's road to go to Salamanca, on the aforesaid ticket; that the defendant's agent in charge of the last named train refused to accept his ticket, but demanded payment of a cash fare from Olean to Salamanca, and, upon his refusal to pay the same, forcibly ejected him from the car in which he was riding and removed him from the train, whereby his finger was broken and other severe and painful injuries were sustained; that his luggage and apparel were taken away on the train, and he was thereby deprived of certain valuable papers, and the place where he was ejected from the train was a great distance from any public house; and that it was at a very late hour of the night, and the weather was very cold and inclement; all of which occasioned him great bodily and mental suffering. The second count alleged that the defendant, by its agents and servants, made an assault upon the plaintiff and ejected him from the cars in which he was lawfully travelling, and did him serious personal injury and subjected him to great personal indignity. The defendant answered with a general denial, and further alleged that when its conductor applied to the plaintiff for his ticket, after leaving Olean, the plaintiff presented a ticket which had been cancelled to Salamanca, whereupon the conductor told him that such ticket was not good to Salamanca, and that the rule of the road would not allow him to, and he could not, accept it, although it would be good beyond Salamanca, and that he must pay full fare to that point, which the plaintiff refused to do, saying to the conductor to put him off, if he dared to do so; that the conductor told him he should be obliged to stop the train at the next station and put him off; and that, the plaintiff still refusing to pay his fare when the next station was reached, the conductor stopped the train and put him off, using no more force than was necessary and proper. It was further alleged that the plaintiff had no lawful right Statement of the Case. to be transported over the road to Salamanca, and was travelling on defendant's cars in violation of a uniform rule of the road which was explained to him before he was put off, and without any lawful right whatever, and that if he sustained any injuries, of any kind, it was due solely to his own wrong. The garnishees answered separately, and, with the exception of the Fitchburg road, each averred that it had no property or funds whatever in its hands belonging to the principal defendant. The latter company, in its answer, admitted having several thousand dollars in money belonging to the principal defendant. Upon the issues thus made up the case went to trial in the state court resulting in a verdict in favor of the plaintiff for over $6000, which, upon motion of the defendant, was set aside by the court. Soon afterwards, the cause was removed into the Federal court, as before stated. Upon a trial in that court, the jury returned a verdict in favor of the plaintiff and against the defendant for $10,000, and judgment having been entered upon the verdict for that amount, this writ of error was sued out. Since the cause was docketed in this court, the plaintiff has died, and his administrator is now representing his estate. As shown by the bill of exceptions, the plaintiff, on the trial, to sustain the issues on his part, gave evidence to the following effect: On the morning of February 13, 1882, the plaintiff, a resident of Peabody, Massachusetts, purchased an unlimited coupon ticket at the ticket office of the Fitchburg Railroad Company in Boston, from that city to Chicago, one of its coupons being for travel over the defendant's road from Binghamton to Salamanca, New York, at the same time telling the ticket agent that he wanted to buy a ticket which would enable him to stop off at Olean, New York, a town between Binghamton and Salamanca. The agent informed him that such ticket would cost him about $3 more than an unlimited ticket good for one continuous passage over the same route, but it would allow him to stop over at Olean, as he had expressed his desire to do, by "speaking to the conductor." Plaintiff took the ticket and started on his journey. When Statement of the Case. he reached Binghamton three of the lower coupons had been given up, the next one being that for travel between Binghamton and Salamanca. After leaving Hornellsville, a station on the defendant's road between the last-named two places, the plaintiff said to the conductor as he came through the car to take up tickets, that he desired to stop off at Olean, at the same time asking him if they would make connection at that point with a train running south on another road to a town called Portville, where he wished to go for a short time on business. The conductor replied to him that that train would wait for them if they were late at Olean, and further said, "I will fix you all right." The conductor punched his ticket and returned it to him. Reaching Olean the plaintiff got off the train, made his journey to Portville, returned to Olean and took passage on the next west-bound train over the defendant's road to complete his journey to Chicago. When the conductor came for his ticket the plaintiff handed the ticket, attached to which was the punched coupon from Binghamton to Salamanca. The conductor looked at it a minute and threw it back to him, remarking that it was "No good," and that he would have to pay his fare from Olean to Salamanca. After some wrangling over the matter, the plaintiff still refusing to pay the extra fare demanded unless the conductor would give him a written receipt therefor, and the conductor refusing to give such receipt, the latter stopped the train at a small station called Allegheny station, about the middle of the night, and, with the assistance of the brakeman and other employés of the road on the train, forcibly ejected the plaintiff from the train, using much more violence and force than was necessary and proper for such purpose, so that the plaintiff was severely injured in his left arm and wrist, from which injury he has suffered great pain and anguish, and for which he has received medical treatment. Upon reaching the platform the plaintiff, seeing that the night was very dark and the weather very cold, offered to pay the extra fare on to Salamanca if the conductor would allow him to reënter the train; but this the conductor refused to let him do, and in doing so used offensive and unseemly language. Part of the plaintiff's Statement of the Case. baggage, containing some clothes, was left on the train and was never returned to him. He spent the night at Allegheny station, and on the following morning hired a carriage and drove back to Olean where he again took a west-bound train on the defendant's road, and presented to the conductor the same ticket and coupon that had been refused the night before by the other conductor, and it was received without any question whatever as to its validity, and he continued on his journey. On cross-examination the plaintiff testified that he did not ask the conductor before reaching Olean for a stop-over check, and that nothing was said about such thing by the conductor; and on being recalled by his own counsel he stated that the agent in Boston said nothing about a stop-over check. The plaintiff also introduced evidence tending to prove that it was the duty of the conductor, under a custom in relation to railroad matters, to give the plaintiff a stop-over check at Olean, without plaintiff asking for it, after the latter had stated that he desired to stop over at that place; and that the only difference between the form of a limited ticket, which was good only for a continuous passage, and an unlimited one, such as he had bought, giving stop-over privileges, was, that in the limited ticket the agent selling it would punch out the year, month and day it was sold, in the margin of the ticket, and punch each of the coupons with an L, whereas the unlimited ticket would not be punched at all by the agent selling it. The evidence introduced by the defendant tended to contradict some statements made by the plaintiff with respect to the conversation had with the agent who sold him the ticket, and also as to the occurrences and conversations which took place between him and the conductor, immediately prior to his being put off, and the amount of force used in putting him off; but the main facts in the case, as testified to by the plaintiff, were practically undisputed. The conductor who put him off was called and testified, among other things, that he thought the plaintiff had a limited ticket instead of one unlimited, and so reported to the company; but that that mistake on his part VOL. CXLII-5 |