Gregory v. Chicago & Northwestern Railway Co.

Given, J. I. The grounds of defendant’s motion for a verdict were, that the evidence shows that the plaintiff was ejected from the train lawfully, and without unnecessary violence, insult, or injury; that — 346 — the requirement that he remove his dog was reasonable, and one which the conductor had a right to enforce by removing the plaintiff; and that there is not sufficient evidence to sustain a verdict for the plaintiff. The errors assigned are, that the court erred in sustaining this motion on each and every ground thereof, and in not submitting the case to the jury. 1 But two witnesses were examined, namely, the plaintiff and H. Williams, and the facts testified to are, in substance, as follows: In September, 1898, the plaintiff, in response to a telegram from his wife to come to their home, near Kimball, S. D., got on board one of defendant’s passenger trains at Sutherland, Iowa, for Hawarden. Plaintiff did not have time to buy a ticket, and consequently paid his fare to the first station, where, by the direction of the conductor, he purchased a ticket for one dollar and forty-five cents to Hawarden, which ticket he surrendered to the conductor. When he boarded the train he had with him a bird dog, led by a cord, which he took with him into the smoking car, and placed between the seats where he sat. After plaintiff had given up his ticket, the brakeman, observing the dog, said to the plaintiff: “Why don’t you put the dog in the baggage car? If you want to ride with a dog it is no reason other people should.” After that, plaintiff asked the conductor, as he was passing, if his dog could ride in there, and was told: “We have been forbidden to let people put their dogs in the coach. They have to be put in the baggage car;” and told plaintiff to put him there at Alton. At Alton plaintiff took his dog to the baggage car, and was told by the baggage man that he must pay fifty cents to put the dog in the car. Thus far we have the testimony of the plaintiff alone, and as to what followed, we have also the testimony of Mr, Williams, who was at the — 347 — baggage car. Plaintiff says the baggage man told him it would cost fifty cents. That he (plaintiff) told the baggage man that, he thought he bad only money enough to get home, and that he replied: “I can’t help it. I can’t carry him then;” and that plaintiff went back to his seat in the smoking car, taking the dog with him. He further testified as follows: “In a few minutes the conductor and brakeman both came in. The conductor said: T thought you were going to put your dog in the baggage car.’ I said I was but they would not take him without my paying fifty cents, and I did not have money enough only to pay my way home to Brule county. He said: ‘Well, you had better dig up, or you will have to get off. You can’t take your dog on this train.’ I told him to give me my ticket back, and he said he would not do it, or could not do it, I do not know which; but anyhow he took hold of me, and said: ‘Dig up, or get off here,’ and took hold of my arm, and said: ‘Come along.’ I was sitting on the left-hand side of the car, and I took hold of the seat, and held, and he pulled on me, and I held to the seat, and he was a small fellow, and he didn’t get me loose. Then the brakeman attempted as though he was going to take hold of me too. The conductor seemed to get mad or excited or something, and said: T will show you, if you don’t get off,’ and went out the door, and in a few minutes he came in with the city marshal, who walked up to me, and said: T guess, old man, you will have to come here,’ and took hold of me. The man had a star on his coat. When I saw the star, I told the man I had a first-class ticket to ride on the train. The conductor said: ‘Well, hurry up, and take him off.’ He got hold on the other side, and the marshal says: T am an officer,’ and reached his hand behind him, as though he was going to draw a weapon or something, and I said- T guess you have the — 348 — authority to arrest me, and take me off, and I will go.’ I got on the platform, and the marshal stood by me, and the conductor waved the engineer to pull out, and the marshal would not let me get on.” Mr. Williams, who had come to the train to receive some express goods, testified to substantially the same occurrence at the baggage car, except that the baggage man said it would cost twenty-five cents to carry the dog. He testified as follows as to what occurred after the plaintiff was told he could not put his dog in the baggage car without paying: “Mr. Gregory turned, and walked away, and as he walked away said he had a first-class ticket, and was going to take his dog with him in the coach, and he went and got into the coach, and took the dog with him. The brakeman and conductor then went into the coach. I stepped on the platform of the coach, and heard the conductor talking with Mr. Gregory. He told Mr. Gregory he would have to put the dog in the baggage car. Mr. Gregory said he had been to the baggage car with the dog, and the baggage man wouldn’t take him until he gave him twenty-five cents. Mr. Gregory said he did not have twenty-five cents; that if he did have it he would give it, and put the dog in the baggage car. The conductor then said, “Tour dog can’t ride in this coach, and you will have to take him off.” Gegory said he had a first-class ticket, and he was not going to leave his dog. They had more or less talk that I can’t remember, but the conductor said: ‘You’ll have to get off. Your dog can’t ride in this coach.’ Then Gregory told him that he and his crew could not put him off, and the condutor said, T will show you that you can be put off,’ or ‘taken off the train,’ and stepped off the coach, and called the marshal of the town. The marshal came,. and told Mr. Gregory he would have to get off the train with the dog. Mr. Gregory said to the marshal, T suppose you — 349 — have the right to take me off,’ and he got up, and took his dog, and walked' out of the coach with the marshal.” 2 II. Appellant’s first contention is “that it was not for the court to decide whether it was a reasonable or proper regulation which prohibited the dog’s riding in the smoking car with the plaintiff, but a question of fact for the jury to decide.” Appellant refers to no authority, and the only case we find that seems to hold the rule contended for is State v. Overton, 24 N. J. Law, 435. An examination of that case will show that it is not authority for the rule. The question is discussed at length, a distinction made between by-laws and regulations affecting third persons, and a seeming holding that the reasonableness of the former should be determined by the court, and of the latter by the jury. The court says, however: “Here was no evidence of any by-law, or of any regulation made by the company affecting the rights of passengers upon the reasonableness or validity of which either court or jury was called upon to decide. The right of the passenger rested upon his contract.” Again, the court says, “But there was, in reality,no such question involved in the present case.” In that case the defendant, a conductor, was prosecuted criminally for ejecting a man from the train who had purchased a ticket from one point to another, and had stopped at an intermediate station without a stop-over check, and sought to ride on the defendant’s train on the train check of the first conductor. In State v. Chovin, 7 Iowa, 204, the defendant, a conductor, was prosecuted for ejecting a man who refused to pay ten cents more than the price of a ticket, exacted from passengers who did not procure tickets. After recognizing the right of the company to make reasonable regulations for the safety and security of its passengers to facilitate its business, and for the conduct — 350 — of passengers while on its trains, the court says: “In State v. Overton, 24 N. J. Law, 435, it was held that the reasonableness of the regulations was a question of fact for the jury; and to this we may add that all regulations will be deemed reasonable which are suitable to enable the company to perform the duties it undertakes, and to secure its own just rights in such employment; and also such as are necessary and proper to insure the safety and promote the comfort of passengers,” — -referring to Commonwealth v. Power, 7 Metcalf (Mass.) 596. This might seem decisive of the question, but, referring to that case, it will be seen that it was tried to the court without the intervention of a jury; therefore this question could not arise, and what is said is not decisive of the question, but merely incidental to the matters being considered. The question is not referred to in the Power Case. Justice Stockton, dissenting, says: “Whether the reasonableness of any given law, rule, or regulation is to be determined by the court, or is a question of fact for a jury, has not been settled by any preponderance of authority.” In Railroad Co. v. Fleming, 14 Lea. 145, it is said: “The rules and regulations of a railroad corporation, as of other corporations, are subject to the requirements that they must be reasonable. Whether they are reasonable or not, is a question for the court, and not for the jury, and this is for the obvious reason, that there must be uniformity in the construction, which can always be obtained by the decision of the court. If left as a question of fact to the j ury, the result might vary with each jury, and the corporation could have no certainty that any rule would stand the test with every jury. Ordinarily, too, jurors are not aware, and cannot readily be made aware,- of all the reasons calling for the rule,” — referring to Vedder v. Fellows, 20 N. Y. 126, which fully sustains the conclusion. Sec, also Avery v. Railroad Co., 121 N. Y., at page 44 (24 N. E. — 351 — Rep. 23). In Railroad Co. v. Wittemore, 43 Ill. 420, the lower court left it to the jury to say whether a rule requiring passengers to surrender their tickets was reasonable, and the supreme court said: “This was error. It was proper to admit testimony, as was done, but, either with or without this testimony, it was for the court to say whether the regulation was reasonable, and, therefore, obligatory upon the passengers. The necessity of holding this to be a question of law, and, therefore, within the province of the court to settle, is apparent from the consideration that it is only by so holding that fixed and permanent relation can be established. If this question is to be left to juries, one rule would be applied by them to-day and another to-morrow. In one trial a railway would be liable, and in another, presenting the same question, not liable. Neither the companies nor passengers would know their rights or their obligations. A fixed system for the control of the vast interests connected with railways would be impossible, while such a system is essential equally to the roads and to the public.” In Chilton v. Railroad Co., 114 Mo. 89 (21 S. W. Rep. 458), one contention was whether a regulation which excluded colored women from the ladies’ coach was reasonable. The court says: “Whether this regulation, the facts being undisputed, was a reasonable one, was a question of law, to be determined by the court; and in submitting it as a question of fact to the jury, the court committed error.” In Railroad Co. v. Wysor, 82 Va. 250, it is said, at page 261: “ The reasonableness of the rules and regulations of a railroad company is a question of law addressed to the courts.” See, also, Commonwealth v. Worcester, 3 Pick. 462, and Vandine Case, 6 Pick. 187. We are of the opinion that reason and the weight of authorities are in favor of the rule that the reasonableness of regulations prescribed by railroad corporations for the safety, comfort, and — 352 — conduct of its passengers, and for the proper management of its business, are questions for the courts to decide. We think the court properly held that the regulations prohibiting persons from taking dogs with them to be carried on cars used for the carriage of passengers, and the rule requiring pay for carrying them in baggage cars, are reasonable, and were properly held to be such by the trial court. 3 III. Appellant’s further contention is that the most that could be claimed would be that the conductor could have the dog removed from the 'car, but not the plaintiff. If plaintiff had removed his dog from the car, unquestionably he had a right to remain thereon. This he did not do, nor offer to do. It is evident that when he failed to get his dog carried in the baggage car, he determined to keep him with him in the smoking car. As he walked away from the baggage car, he said “he had' a first-class ticket, and was going to take his dog with him in the coach,” and did so. He was told, “Your dog can’t ride in this coach, and you will have to take him off.” To this he replied that “he had a first-class ticket, and he was not going to leave his dog.” It is evident that the plaintiff not only refused to remove the dog, as it was his duty to do, but insisted on keeping him in the car. The rule that prohibited this is reasonable, and, as the plaintiff refused to remove the dog, the conductor was justified in removing both from the car, and did so in a proper manner. 4 It is argued that plaintiff is entitled to recover the value of his ticket from Alton to Hawarden; but not so, -as. he had forfeited his right to ride on the train by refusing to comply with a reasonable regulation. Under the evidence, there was no question to be submitted to the jury, and no evidence to support a verdict for the plaintiff. — Affirmed.