Louisville, New Albany & Chicago Railway Co. v. Goben

Davis, J. The appellee sued the appellant and recovered judgment for $2,000.00, for being wrongfully ejected from appellant’s train with force and violence by the conductor under humiliating circumstances. The errors assigned are: 1. The complaint does not state facts sufficient to constitute a cause of action. 2. The court erred in overruling the demurrer to the complaint. — 124 — 3. The court erred in overruling appellant’s motion for judgment in its favor on the special verdict of the jury. 4. The court erred in overruling appellant’s motion for a new trial. 5. The court erred in overruling appellant’s motion in arrest of judgment. 6. The court erred in overruling the appellant’s motion to change and modify the judgment. The first, second, and fifth specifications may be con-, sidered together. Counsel for appellant contend that the complaint proceeds upon the theory of negligence, and that it is insufficient because it fails to aver that the appellee was without fault. In this view counsel are, in our opinion, mistaken. The action is to recover damages for injuries alleged to have been sustained by the appellee in being unlawfully and forcibly ejected from appellant’s train. The unlawful act alleged is in the nature of an assault and battery. The doctrine of contributory negligence has no application to this class of cases. Chicago, etc., R. R. Co. v. Bills, 118 Ind. 221; Steinmetz v. Kelly, 72 Ind. 442; Whitehead v. Mathaway, 85 Ind. 85; Norris v. Casel, 90 Ind. 143; Beem v. Chestnut, 120 Ind. 390; Myers v. Moore, 3 Ind. App. 226. See also Chicago, etc., R. R. Co. v. Ault, 10 Ind. App. 661; Chicago, etc., R. R. Co. v. Conley, 6 Ind. App. 9; Louisville, etc., R. W. Co. v. Wolfe, 128 Ind. 347; Evansville, etc., R. R. Co. v. Cates, 41 N. E. Rep. 712; Cleveland, etc., R. W. Co. v. Beckett, 11 Ind. App. 547. So far as any objection has been made to the special verdict, it is sufficient. There was no' error, in our opinion, in overruling appellant’s motion for judgment in its favor on the special verdict of the jury. The sixth error assigned has not been discussed. — 125 — In the view we take of the case, the meritorious questions on appeal are presented by the fourth error assigned. It is not denied that appellee paid the conductor his fare from Indianapolis to Monticello, for which the conductor gave him a rebate check or train ticket (of which he kept a duplicate) for continuous passage on that day and train between the points named, and redeemable at ten cents at any ticket office of the company within thirty days from the date of issue. (The appellee was then standing in the front end of the car, but immediately after paying his fare he walked back a short distance and was seated with two of his friends, when the conductor, about five minutes after he had paid him his fare, reached that point and asked appellee for his ticket. The appellee told the conductor that he had paid him his fare, to which the conductor replied that he had paid him nothing; that he was trying to lie out of paying his fare; and that he would put the appellee off the train if he did not pay. The appellee testifies that when the conductor gave him the train check or ticket he put it in his pocket, and that when he afterwards asked him to pay his fare, he did not think anything about the check or ticket. There is evidence fully tending to prove that the conductor made no inquiry of the appellee as to when, or where, or under what circumstances, or to what point he had paid his fare before making the false accusation against him that he had paid nothing. The conductor forcibly expelled him from the train in the presence of the other passengers, some of whom where his acquaintances, about 1 o’clock in the morning in the winter season, and as the result of his exposure the appellee contracted a severe cold and was in bed eight days. On cross-examination of appellee, the appellant — 126 — asked Mm, “Don’t you know that if you had produced that ticket it wouM have stopped all trouble between you?” The court sustained the objection of counsel for appellee to the question. There was no error in this ruling. The question sought to elicit appellee’s opinion, at the trial, as- to what the effect would have been on the occasion when he was expelled if he had then produced the conductor’s check or ticket. What his opinion on the subject at the time of the trial was is immaterial. If he had been asked whether he knew at the time he was expelled that the production of the check or ticket would have avoided the trouble, this would perhaps have been a proper question. Complaint is also made of the ruling of the court in allowing questions to be asked the conductor on cross-examination, as to a visit he made to appellee at his home in Wolcott, after his explusion from the train. Our attention, however, has not been called to anything improper in this cross-examination. The argument of counsel for appellant is based upon the theory that the conversation between the conductor and appellee was in reference to an attempt at compromise, but the evidence objected to does not tend to prove any offer or attempt to compromise. The conversation was unimportant, and although the evidence elicited may have been immaterial it was not prejudicial. Among the elements the jury had the right to consider in assessing appellee’s damages were, pain, suffering, loss of time, also his feelings of shame and humiliation occasioned by the wrongful conduct of the conductor. Chicago, etc., R. R. Co. v. Conley, supra; Chicago, etc., R. R. Co. v. Holdridge, 118 Ind. 281; Lake Erie, etc., R. W. Co. v. Fix, 88 Ind. — 127 — 381; Lake Erie, etc., R. W. Co. v. Arnold, 8 Ind. App. 297. The instruction relative to exemplary damages is sustained by the authorities. Louisville, etc., R. W. Co. Wolfe, supra; Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116. In Jeffersonville R. R. Co. v. Rogers, supra, the Supreme Court said: “In our opinion his expulsion in the night time, and at a distance from any station or convenient lodging place, in short, his expulsion at the time and place, and in the manner indicated by the testimony above set out, without reference to any harsh and unnecessary means, authorized the jury to infer that it was done in the spirit of oppressive malice or wantonness, and to award exemplary damages if they saw proper to do so.” In Louisville, etc., R. W. Co. v. Wolfe, supra, the Supreme Court said: “The instruction relates to the right to give exemplary damages, and there was some evidence which, if true, authorized the assessment of exemplary damages.” The evidence in this case was sufficient to justify the inference that he was wrongfully expelled by the conductor, in a spirit of malice or oppression. The corporation is not liable to a State prosecution. If the corporation were subject to such prosecution, exemplary damages could not be assessed. Taber v. Hutson, 5 Ind. 322. In other cases it has been held that the injured party was entitled to recover compensatory damages, but whether he could • recover exemplary damages does not appear to have been considered. Lake Erie, etc., R. W. Co. v. Fix, supra; Chicago, etc., R. W. Co. v. Holdridge, supra; Cleveland, etc., R. W. Co. v. Beckett, supra; Lake Erie, etc., R. W. Co. v. Arnold, supra. — 128 — Filed February 20, 1896. It is not shown that the instruction asked and refused was signed by counsel, and therefore there was no error in refusing to give it. Board, etc., v. Legg, Admr., 110 Ind. 479, 486; Hutchinson v. Lemcke, 107 Ind. 121; Puett v. Beard, 86 Ind. 104. It is earnestly insisted that the damages assessed are excessive. In Louisville, etc., R. W. Co. v. Wolfe, supra, the Supreme Court affirmed a judgment for $1,500 damages. In Jeffersonville R. R. Co. v. Rogers, supra, the Supreme Court affirmed a judgment for $1,000 damages. See authorities cited in Lake Erie, etc. R. W. Co. v. Arnold, supra, and in Evansville, etc., R. R. Co. v. Cates, supra. When we consider that in addition to compensatory damages the appellee was entitled to recover exemplary damages, we cannot, under the circumstances, in the light of the authorities cited, say that the damages are so excessive and outrageous as to justify this court in reversing the judgment of the trial court. Judgment affirmed.