Georgia Railway & Power Co. v. Turner

BelTj, J. The character of this action is shown in the headnotes. A verdict was found for the plaintiff, and the defendant has excepted to the overruling of its motion for a new trial. As to one phase of the case the evidence was substantially as follows: The plaintiff, who was a boy nine 3rears of age, boarded one of the defendant’s street-cars, in company with his mother and an aunt. His aunt paid the fares for them all, and procured transfers to another line in the defendant’s system of railways, over .which they were being transported at the time of the occurrence complained of. The plaintiff took a position on the platform at the front end of the car to which they had transferred, while the mother and the aunt seated themselves in another part of the car, but not far away. After they had ridden some distance the conductor approached the plaintiff and demanded his fare. The boy replied that his fare had been paid, when in fact it had not, although he appears to have been entirely honest in responding as he did. It seems that he thought the car was a “pay as you enter” car, like others upon which he had ridden, and believed that his mother or aunt had surrendered the transfers accordingly. In this he was mistaken, and yet he made no other response except that his fare had been paid. He said nothing to indicate that he was traveling in the custody of adult relatives, or that he was laboring under any misapprehension. When the conductor was about to eject him, the aunt said to the conductor, “Here are the transfers; don’t handle that boy so rough.” The plaintiff claims to have heard her, and it might have been inferred that he thus believed that the conductor heard her also, and that for this reason he did not offer an explanation or retraction of his own statement. The conductor proceeded to put the plaintiff off, and some of the evidence would have authorized the inference that even if the ejection was warranted, it was nevertheless accompanied with violence and undue force. The circumstances in evidence would authorize the conclusion that the conductor either heard or should have heard the aunt’s [104] tender of fares, and thus that the plaintiff did not lose the rights to which he was entitled as a passenger, which relation he had thitherto undoubtedly occupied. On the other hand the jury could have found that the conductor did not hear the tender, and was not derelict in failing to hear. The evidence was not such as to demand the conclusion that the conductor was put upon notice that the child was not traveling upon his own responsibility or was not the proper person to pay his fare. See, in this connection, Beckwith v. Cheshire R. Co., 143 Mass. 68 (8 N. E. 875); Pittsburg &c. Ry. Co. v. Dewin, 86 Ill. 296; Lake Shore &c. Ry. Co. v. Orndorff, 55 Ohio St. 589 (45 N. E. 447, 60 Am. St. Rep. 716, 38 L. R. A. 140, and note). In the absence of such notice, the conductor would have had the right to eject the plaintiff when he failed on demand to pay fare, and made no reply except an untrue one that his fare had been paid. While it is true that neither the plaintiff nor any one in whose custody he was traveling appears to have intended that he should ride without the payment of fare, and that the boy was acting under a clear misapprehension, the mistake of the plaintiff himself was not chargeable to the carrier, unless the conductor knew of it or ought to have known of it under the circumstances. See Harp v. Southern Ry. Co., 119 Ga. 927 (47 S. E. 206, 100 Am. St. Rep. 212); Foskey v. Wrightsville & Tennille R. Co., 19 Ga. App. 670 (92 S. E. 34); Civil Code (1910), § 2750. As already stated, it does not conclusively appear that the conductor knew or should have known that the plaintiff was traveling in the custody of another or others, who should have been looked to for the payment of his fare. Thus we think the evidence would have authorized a finding that the plaintiff by his own error lost the rights of a passenger; and there being some evidence to the effect that no violence or undue force was used in his ejection, the court committed error in failing to charge the principle embodied in the ruling of the Supreme Court in Allison v. Georgia R. &c. Co., supra: “The ejection-of a passenger from a train, upon his refusal to pay fare which is rightfully demanded of him, affords no cause of complaint against the company from whose train he is ejected by the employees of the company, provided that in ejecting him no violence nor undue force is used.” The defense therein alluded to was nowhere sub [105] mitted, although it was directly involved under the pleadings and the evidence. The above is not an exhaustive statement of the evidence, but is enough to illustrate the ruling contained in the sixth headnote, which alone seems to require amplification. The court erred in overruling the motion for a new trial. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.