Southern Railway Co. v. Lynn

DOWDELL, J. The complaint contained three counts, to which -the defendant filed two pleas, the first being" the plea of not guilty, which was a denial of the material allegations of the complaint (Code, § 3295) ; the second was a 'Special plea setting up independent matter in avoidance of plaintiff’s right of recovery. Every material allegation of the complaint, except the averment as to the rude manner in which the plaintiff was ejected from the oars, ivas sustained by the uncontradicted evidence in the case. The testimony was in conflict as to the matter set up in the second plea, which was that the plaintiff was ejected on account of improper behavior, and boisterous conduct on the train. The question as to the duty of plaintiff, after having paid his fare from Brookside to Blossburg to the conductor on the main line of defendant’s railroad, to obtain-a check or other evidence of such payment from such conductor, was foreign to the issues presented under the pleadings as made up by the parties. It was plainly the duty of the defendant, after having received the plaintiff's fare for transportation from tlie station of Brookside, where he boarded the defendant’s train, to Blossburg, the destination of his journey, to have transported him safely to such destination without requiring additional compensation. If, by reason of a (diange of cars at Cardiff from the defendant’s main line to a branch line of said defendant running to Blossburg, the rules and regulations of the defendant company required passengers making such changes in cases where the fare had been paid from a point on the main liné to a point on the branch line, to the main line conductor, to hold checks or other evidence of such [304] payment of fare to tlie main line conductor to be presented to tlie conductor.of the branch line, then, such matter, to he available, as a defense, should have been presented under a proper plea. This was not done in the present case, and therefore such matter was irrelevant under the pleading. Written charges requested by the defendant, predicated upon the theory that it was the plaintiff’s duty to hold such written check, or other evidence of payment of fare by him to the conductor on the main line, were properly refused. There was evidence tending, to show that the plaintiff could not reach his destination, Blossburg, on foot without having to’ wade a creek, except by traveling-over defendant’s track. Certainly under these circumstances, after having been wrongfully ejected from the train, and by the defendant put down upon its track, he could not he held a trespasser. Written charge No. 7 requested- by the defendant, which assumed that the plaintiff was a trespasser, was properly refused. Charge No. 15 was misleading in its tendencies, and' no error resulted in its refusal by the court. Certain portions of the oral charge of the court were excepted to by the defendant, but when’ taken in connection with other portions, and -considered as a whole, we think the, charge is free from reversible error. The court might have properly omitted in its instructions to the-jury any reference to the corresponding duties of the passenger and the defendant company upon the subject of checks, or other evidence of payment of fare to tire first conductor, since this was not within the issues under the pleadings, though discussed by counsel on both sides. The bill of exceptions does not show any -written charge given by the court at the request of the plaintiff. There is, however, such a charge copied into the transcript, but charges given or refused will not he reviewed by this court unless presented by the bill of exceptions. It was a conceded fact, at least not disputed, that the plaintiff paid his fare to the main line conductor from Brookside to Blossburg, consequently the admission of the testimony by the witness David Lynn as to the custom of the main line conductor in receiving fare from [305] passengers from Brookside to Blossburg, if error, was error without injury, since under the pleading, the issue on this point was one only of payment of fare vel non. For like reason, we think no injury resulted from the ruling of the court in admitting the testimony of this witness to the effect, that it was customary for passengers to get on the train at Fish Trap Tunnel, where he got on, besides, this was in rebuttal of irrelevant evidence on behalf of the defense. On the issue presented by defendant’s plea No. 2, we think the boisterous conduct of the other persons than the plaintiff, or subsequent difficulties between the conductor of the branch line and the plaintiff, were wholly irrelevant and immaterial, and the court committed no error in not permitting this to be shown in evidence. The complaint as amended sufficiently stated a good cause of action. The judgment of the city court is affirmed.