Capital Traction Co. v. Morgan

Mr. Justice Eobb delivered the opinion of the Court: The first assignment of error relates to the action of the trial court in permitting the plaintiff to prove the facts and circumstances surrounding the assault. It is the contention of the defendant that the special plea and the joinder of issue thereon raised the single question of justification. The plea alleged that when the motorman laid hands upon and removed the plaintiff, plaintiff was “blockading the passage of other passengers forward,” and such must have been the finding of the jury to sustain the plea. The evidence of the plaintiff tended to show not only that he was not “blockading the passage of other [247] passengers forward,” but that there was plenty of room for them to pass him. Under his contention and evidence the plea of justification was ill founded. If the jury should accept his view, as they subsequently did, it of course would be necessary that the facts surrounding the assault should be known, that the damages might be measured. The plaintiff, by joining issue on this special plea, merely conceded that if the jury should find the facts as therein alleged, that is, if the jury should find that the plaintiff was blocking the aisle, the motonnan was justified in removing him, and that the motonnan used no more than the necessary amount of force. But if the special plea was ill founded, the motorman’s act constituted an assault, as plaintiff contended, and under the pleadings the court clearly was right in permitting the plaintiff to prove the facts surrounding the assault. During plaintiff’s testimony he stated that immediately after his release by the motorman he assumed the position from which he had been removed. Ilis counsel thereupon moved the court to strike out this statement, which motion was granted, over the objection and exception of the defendant. We quite agree with the learned trial justice that “if he (plaintiff) had a right there originally, it would not malee any difference whether he went back or not.” Moreover, defendant’s witnesses, without objection, testified to the same fact. We come now to the main question in the case, that is, whether the court’s charge, to which reference has been made, correctly stated the law. While the duty of common carriers of passengers may not be abridged by rules and regulations, there is no doubt as to the power of such a carrier to make and enforce reasonable rules and regulations having for their object the safety and comfort of the traveling public. The rights of a single passenger are not greater nor less than those of every other passenger. Thus the carrier has a right to make and enforce a rule confining a passenger to one seat. Chesapeake & O. R. Co. v. Spiller, 151 Ky. 222, 50 L.R.A.(N.S.) 394, 162 S. W. 815, Ann. Cas. 1915D, 186. The passenger contracts for one seat, and has no right to more. So, too, must [248] he conform to reasonable regulations as to his conduct in the waiting room of the carrier. Central of Georgia R. Co. v. Motes, 117 Ga. 923, 62 L.R.A. 507, 97 Am. St. Rep. 223, 43 S. E. 990, 14 Am. Neg. Rep. 13. But in the present case no regulation of the carrier is involved, for the only evidence upon this point is evidence tending to show that “conductors and motormen had verbal instructions from the company to keep the aisles clear as far as possible, so passengers could pass through the car.” It therefore was contemplated that if more passengers were taken on than could find- seats, they would be permitted to occupy the aisle of the car, unless in so doing they prevented passerigers from passing through it. The charge of the court upon this point was in harmony with the instructions of the defendant to its employees. The defendant, having taken on more passengers than it could seat, a by no means uncommon occurrence, had no right to move those passengers about as pawns upon a chess board. In other words, the plaintiff had a right to assume a position in the aisle, and remain there, unless by so doing he prevented other passengers from passing there-through. The interior of the car was common to all passengers, and so long as plaintiff demeaned himself properly and respected the rights of the other passengers, he was not subject to the whims or arbitrary notions of defendant’s employees. The next and last assignment of error relates to the question of damages. It first is insisted that there was no proof of damage, and hence that nominal damages only should have been allowed. It is seriously contended by appellant that it does not appear that the plaintiff suffered any injured feelings, nor that he endured any indignity, humiliation, or wounded pride. One person may be more sensitive than another, or, stated otherwise, one person may be more callous than another to public gaze under embarrassing conditions, but we think the rule of law is that where the circumstances-of such an assault as is here shown to have taken place are before the jury, the jury may infer that the average person would suffer from the indignity and humiliation. Indeed, to the average person those elements of hurt would be more distressing and lasting than the [249] comparatively insignificant physical hurt. Stowe v. Heywood, 7 Allen, 118; Brown v. Hannibal & St. J. R. Co. 99 Mo. 319, 12 S. W. 655; Western U. Teleg. Co. v. Adams, 75 Tex. 531, 6 L.R.A. 844, 16 Am. St. Rep. 920, 12 S. W. 857; McCoy v. Milwaukee Street R. Co. 88 Wis. 56, 59 N. W. 453. But, it is insisted, mental suffering unaccompanied by physical injury may not form the basis of damages. The overwhelming weight of authority is to the contrary. Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101 37 L. ed. 97, 13 Sup. Ct. Rep. 261; Alexander v. Blodgett, 44 Vt. 476; Head v. Georgia P. R. Co. 79 Ga. 358, 11 Am. St. Rep. 434, 7 S. E. 217, 8 Am. Neg. Cas. 135; Shepard v. Chicago, R. I. & P. R. Co. 77 Iowa, 54, 41 N. W. 564; Gillespie v. Brooklyn Heights R. Co. 178 N. Y. 347, 66 L.R.A. 618, 102 Am. St. Rep. 503, 70 N. E. 857, 16 Am. Neg. Rep. 181; Louisville & N. R. Co. v. Hine, 121 Ala. 234, 25 So. 857; Pennsylvania R. Co. v. Connell, 127 Ill. 419, 20 N. E. 89; Pennsylvania Co. v. Bray, 125 Ind. 229, 25 N. E. 439. Here, however, there was an actual physical assault. The further contention is made, under this assignment of error, that the charge of the court upon the question of damages was so vague as to permit the jury to find punitive damages. There is no justification for this contention in the record. Punitive damages were neither claimed by the plaintiff nor permitted to be found by the court. The judgment is affirmed, with costs. Affirmed.