Opinion
(Filed 3 May, 1904.)
Carriers — Passengers — Damages.
A person who gets on a blind baggage car, though having a ticket, but not having told the conductor that he had it, and the conductor not having seen it, is not entitled to recover as a passenger for injuries received by being pulled off the train by the conductor.
ACTION by Theodore McGraw and John S. White against the Southern Railway Company, heard by Judge T. A. McNeill and a jury, at March Term, 1904, of the Superior Court of MECKLENBURG County.
The plaintiff, together with one White, purchased a ticket from the defendant's agent at Charlotte entitling him to go to Huntersville. He and White, while the train was standing at the station, went across the street for the purpose of buying a melon. The train moving off they ran to catch it and got upon the platform of the first car they reached, being the "blind baggage" car. The train moved slowly until it reached the crossing of the Seaboard Air Line track, where it was required by law to stop. The conductor, finding the plaintiff and White on the platform, pulled them off.
The plaintiff alleges that he was a passenger on the defendant's train, and that the conductor violently and wantonly assaulted him, whereby he was greatly injured. He sues to recover damages for his injuries. White also brought suit and the cases were consolidated.
The plaintiff having testified in regard to the purchase of the ticket and boarding the train, said: "After we crossed the crossing, Tom Rowland (the conductor) came through. I was on the side of the platform next to the door, and White on the right side. When he came up, he said: `Fall off.' I said `I have got a ticket,' and he (265) said, `you have like hell.' I had a ticket in my hand. He caught me by the left arm and jerked me off. The train was moving." He was corroborated by White. The defendant introduced the conductor, who testified: "There is a State law requiring all trains to stop at the crossing. My porter, as usual, went over to the engine to see if there were any tramps or people on the train who had no business. On this occasion we stopped as usual. The porter did not come back as usual and I thought there was something wrong. I jumped on the ground and ran around the mail car. I was on the back of the first-class car. When I got to the front end of the mail car the train had begun to move, and I saw these two men up there. About the time I got there the baggage-master stepped up on the other side. I told the men to come down; they did not get down, and in order to get them on the ground before the train got up too much speed I reached up and pulled them down and let them light on the ground. When I put the second one down, I caught on the back end of the same car. . . . I just caught hold of them and pulled them down. They did not resist. I had no conversation with them; did not see any ticket; did not suppose for a moment that they had any ticket or they would not be there, because it was not a place for passengers and they could not pass from that end of the car to the other. There is no doorway between the mail car and the baggage car. Passengers are not allowed to go through them at all." He was corroborated by the porter. It was also in evidence that the rule of the defendant company forbade passengers from riding on the platform.
The evidence in regard to the injury sustained by the plaintiff (266) was contradictory. His Honor directed the jury to answer the first issue "Yes." The defendant excepted, and from a judgment for the plaintiff, the defendant appealed.
Montgomery Crowell and M. B. Stickley for plaintiffs.
George F. Bason and L. C. Caldwell for defendant.
CLARK, C. J., dissenting.
There are a number of exceptions in the record to the instructions given by the Court and to the refusal to give special instructions, all of which are duly assigned as error. We are of the opinion that the first exception should be sustained. His Honor charged the jury, as a conclusion of law, that upon all the evidence the plaintiff was a passenger on the defendant's train, meaning of course that he was such for the purpose of maintaining this action. If he was correct in this, the jury must, as a conclusion of law, have answered the second issue "Yes" — thus eliminating the question whether the conductor used excessive force from consideration, except upon the character and amount of damages which should be awarded the plaintiff.
For the purpose of disposing of this first exception, we must assume that the conductor's account of the transaction is correct. The instruction is necessarily based upon that assumption. When the relation of passenger is established by entry upon defendant's premises for the purpose of purchasing a ticket or taking passage on the defendant's train, or entry into the cars for such purpose, the relative rights and duties of the passenger and carrier are fixed and well settled. There is a presumption that a person who enters a passenger car, nothing appearing in his conduct to the contrary, is or intends to become a passenger. R. R. v. Brooks, 57 Pa. St., 339, 98 Am. Dec., 229. No such presumption arises when the entry is upon a baggage or mail car or upon any other portion of the train not assigned to passengers. Elliott on Railroads, sec. 1578, says: "The presumption may of course be rebutted, and it will not ordinarily arise when the person occupies a position on the train which passengers have no right to occupy, or goes upon a train on which passengers are not carried." The (267) general rule is that a person can take passage on such trains only, and only in such places, as the rules of the company provide that passengers shall be carried, and one who does not conform to such rules is ordinarily to be regarded as an intruder or trespasser, and an intruder or trespasser cannot impose upon a railroad company the high duty which a carrier owes to its passengers." Ibid., section 1581. It was the duty of the plaintiff, when found upon the platform of the baggage car, to promptly inform the conductor that he had a ticket, so that he could be given an opportunity to go into the car provided for passengers. He says that he did so. The conductor says that he did not do so, that he said nothing about having a ticket, and that he (conductor) saw no ticket. The truth of the matter should have been ascertained by the jury. If the plaintiff's version of the transaction is true, he is entitled to maintain his action. If the conductor's version is correct, he is not entitled as a passenger to recover. If the jury should find the conductor's version to be true, the plaintiff could recover damages for his ejection only by showing that the conductor used excessive force. R. R. v. Herring, 47 N.J. Law, 137; 54 Am.Rep., 123; Fetter on Carriers, 359. His right to recover punitive damages, if he shows himself entitled to compensatory damages, depends upon well-settled principles. Holmes v. R. R., 94 N.C. 319. There must be a
New trial.
DOUGLAS, J., concurs in result only.