Atchison, Topeka & Santa Fé Railroad v. Dwelle

The opinion of the court was delivered by Johnston, J.: J. C. Dwelle was expelled from one of the trains of the Atchison, Topeka & Santa Fé Railroad Company on April 13, 1887, for the reason that he refused to pay the fare which the collector of the train demanded of him. He took passage on the train at the station of Cedar Grove for the purpose of going to Florence, a distance of six miles. He reached Cedar Grove about the time of the arrival of the train, and after the station agent had left the ticket office and gone to the forward part of the train to assist in loading the baggage that was being taken on at that station. There was no one in the ticket office at the time from whom he could have purchased a ticket. After boarding the train,- the collector demanded his fare, when Dwelle tendered thesum of twenty cents. The collector informed him that as he had no ticket he must pay ten cents in excess of the regular fare, which was eighteen ■cents. Dwelle claimed that the excess could not be collected, for the reason that there was no one in the ticket, office from — 402 — whom he could purchase a ticket, hut the collector insisted on the payment of the twenty-eight cents, aud returned the twenty cents which Dwelle had just before given him. There is a dispute in the evidence as to what subsequently occurred. The collector claims that Dwelle insisted that he would not pay the excess, and told him to stop the traiu and put him off; nd the collector went forward and informed the conductor that a passenger had refused to pay his fare and he desired to him put off. Dwelle, however, claims that he endeavored to pay the excess fare before any steps were taken to stop the train. After the collector went forward for the conductor, Dwelle went toward the l'ear of the coach, when he met another collector and teudered to him the fare, which was at first taken, but about that time the first collector returned with the conductor of the train, and the second collector, being informed of what had previously occurred in relation to Dwelle’s fare, returned the money giveu to him. After a parley between Dwelle and the trainmen, during which Dwelle several times tendered the full amount of twenty-eight cents as fare, he was put off the train. He violently resisted the efforts to eject him, and after being put off he climbed on another portion of the traiu a second time, and the trainmen were again required to use force in removing him from the train. There is testimony that so much time was taken in removing him that the train was stopped for a period of five minutes for that purpose. He claims that one of his legs was strained and injured in the struggle. Error is assigned on the refusal of the court to instruct the jury that if the ticket office at Cedar Grove was open for the sale of tickets for thirty minutes prior to the schedule time for starting the train, and the plaintiff failed to purchase a ticket during that time, and did not tender a ticket upon the train, that he was bound to pay the excess fare; and further, that the defendant was not bound to keep open its ticket office after the schedule time for the starting of the train. Testimony was offered tending to show that the train from which Dwelle was ejected was about ten minutes .behind-time when — 403 — it reached the Cedar Grove station. The court refused this instruction, and instructed the jury that before the railroad company could require the payment of excess fare from a passenger who had not purchased a ticket, it must appear that it kept its ticket office open, with an agent in the same ready upon call to sell tickets, long enough before the starting of the train to enable passengers to purchase tickets and safely board the train. The statute which authorizes a railroad company to discriminate in its rates of fare between those who purchase tickets and those who do not, contains the following proviso: “This act shall not apply to any passenger taking passage on. any railroad train (¡rom any station) at which such railroad company fails to keep tickets for sale, or at which such company shall neglect or fail to keep its ticket office open for the sale of tickets at least thirty minutes immediately prior to the starting of such train.” (Laws of 1886, ch. 139.) i Raiiroafl as excfssfare11611 fullycoiíeeteci, It is contended that it will subject the companies to great inconvenience and hardship to require them to keep an agent at his post, not only thirty minutes before the schedule time of departure, but also during the time that trains are unavoidably delayed, as they frequently are. The statute must control; and its terms are so plain that little question can arise as to their meaning. No right to charge an excess fare g*ven unless the company keeps an office open ^01' the sa^e °f tickets immediately prior to the departure of the trains. No mention is made of the schedule time of starting the trains, nor is there anything in the language of the statute indicating that the office should only be kept open thirty minutes prior to the advertised time of the departure. The exception is expressly made to apply to any passenger taking passage on “any railroad train,” and requires the ticket office to be opén thirty minutes before the starting of such train, and not thirty minutes before the advertised time of starting such train. It might be that in the absence of a statute a regulation such as is con — 404 — tended for might be deemed a reasonable one, such as the courts would enforce; and that seems to have been the holding of the courts in the cases cited by the plaintiff in error. (Railroad Co. v. South, 43 Ill. 176; Swan v. Railroad Co., 132 Mass. 116.) The legislature, however, has determined what a reasonable regulation is in order to found a right for the charge of excess fare, and we are therefore not called upon to determine what in our opinion would be a reasonable regulation in that respect. (Porter v. N. Y. C. Rld. Co., 34 Barb. 353; Nellis v. N. Y. C. Rld. Co., 30 N. Y. 505; Chase v. N. Y. C. Rld. Co., 26 id. 523.) There is a conflict in the evidence as to whether Dwelle arrived at the depot in sufficient time to have purchased a ticket and to have safely boarded the train; but if he did, and there was no opportunity for him to purchase a ticket after his arrival, the company had no right to demand more than eighteen cents from him, nor any right to eject him from the train. Whether the tender of tk' excess was made by Dwelle before any steps were taken to remove him from the train, is also a disputed question by the evidence. The court properly ruled that — 2. Tender of fm-e bé%í-o'nect instruction. “If he refused when demanded to pay the fare he knew, or ought to have known was justly due, and persisted in such refusal until the company in the exercise of its right to expel him therefor had taken the necessary steps to put him off, as by commencing to stop the train, or seizing his person if such seizure was necessary, such plaintiff was a trespasser, and by such acts and conduct re]¡eved the company of its obligation to carry him, and he could not reimpose such obligation on the company by making a tender of the sum due after having once refused it for the purpose and under the circumstances stated, and having put the company to the trouble of the performance of acts necessary to his safe and proper expulsion; but notwithstanding such refusal for such purpose and under such ■circumstances, if the plaintiff, prior to the taking of such steps by the company to expel him, tendered the proper amount to the proper employé, he was bound to accept it and permit the plaintiff to ride.” — 405 — Complaint is made, however, of that part of the charge immediately following the portion above given. It is as follows: “But on the other hand, if you believe from the evidence in the case that the plaintiff refused to pay the amount demanded of him, but that such refusal was not for the purpose of defrauding the company or unjustly witholding its legal dues, or vexing, annoying, delaying or putting to inconvenience the company’s employés, but was done in good faith, under a mistaken belief that he was under no legal obligations to pay all that was demanded, and such honesty of purpose and belief was apparent from the manner, temper, demeanor and conduct of plaintiff, and the circumstances of the case, the company was bound to accept the sum previously refused if tendered at any time before the actual expulsion, or after such expulsion and before the starting up of the train.” It is contended that the motive of the passenger, or whether he acted in good faith and under a mistaken belief that an unjust demand had been made of him, cannot affect the case. It is said that the person in charge of the train must, in the interest of the public as well as the company, act promptly, and should not be required to take the ex parte statements of the passenger in regard to whose fault it was that no ticket was purchased. It is claimed in the present case that the collector did inquire of another passenger who came upon the train at the same station, and learned from him that the office was open and that tickets could have been purchased there. It is further urged that it is unreasonable to compel a conductor to institute an investigation as to the motives of a passenger, whether he is acting in good faith and under a mistaken belief that he was tendering all the fare that could be rightfully required of him; but his proper course when the collector insisted on the payment of the excess was to pay the fare demanded, and afterward, when opportunity is given for investigation, to apply for a refund or seek redress against the company. The following eases are cited as supporting the contention : Railroad Co. v. Nichols, 8 Kas. 505, 519; Railway Co. v. Rice, 33 id. 398, 401; Railroad Co. v. Gants, 38 id. 608, and cases therein cited. — 406 — 3 Erroneous msirucuon. A majority of the court are of the opinion that that portion of the instruction which required an acceptance ofá tender of the amouut demanded at any time before the expulsion, or after the expulsion and before the starting of the train, where the refusal was in good faith and made under a mistaken belief that there was no legal obligation to pay the sum demanded, is erroneous. In the- opinion of the writer the rule of the instruction is both reasonable and correct; and further, that the entire charge states the law aptly, fairly and fully as it arises under the-facts of this case. Of course the person in charge of the train should not be required to read the mind of a passenger, nor be governed in his action by the motives of the passenger which are not manifest. As will be seen, the instruction only required the collector to accept the tender when it appeared from the “ manner, temper, demeanor and conduct of the plaintiff and the circumstances of the case” that the refusal of the excess fare was not to defraud the company or withhold from it all its legal dues, nor to vex or annoy the employés, but that the passenger was honestly mistaken as to a fact, or as to what was legally due from him. .No excess fare could be collected if the ticket office was not open for the purchase of tickets until the departure of the train, and an honest mistake as to this fact may be readily made by either the conductor or the passenger. If a passenger, acting in good faith, makes such a mistake, and refuses a demand for excess fare, and his honesty is apparent to the collector or conductor of the train, and if when he learns his mistake, either before or after his expulsion, he tenders all that is demanded, it is reasonable and right that his tender should be accepted, and he should be allowed to ride. No good purpose can be accomplished by denying his right to ride under such circumstances. It is next urged that the verdict was excessive, and was given under passion and prejudice due to the misconduct of the prevailing party. There is good .reason for this complaint. The misconduct referred to was the statement of matters not pertinent to the case, and which were calculated — 407 — to arouse the prejudice of the jury, by the counsel for the plaintiff below. Iu the course of the argument, it was said that the defendant railroad company is a powerful corporation, which holds its employés and servauts in a vise, and requires them to go and come to the witness-stand and testify at its behoof and dictation; that railroad companies are looked upon with suspicion and prejudice, and that such prejudice is well founded. It was stated that the government gave to the railroad company ten alternate sections of laud on either side of the railroad to aid in the building of its road; that that land was worth on an average to the railroad company $5 an acre, which is$3,200 for every section, and which would be$32,000 a mile that the railroad company got to assist in the building of its road. It is then stated that it is a lamentable fact that, notwithstanding all these things, the railroad company makes a studied and determined effort to bleed the people all along its line. An objection was made to the remarks of counsel, as not based on the facts, and as being an appeal to the passions of the jury, which objection was overruled. Iu further argument, counsel continued to inveigh against railroad companies, claiming that they controlled legislation, and that the act in relation to collection of excess fare was for the benefit of railroad companies, and was dictated by them. It was further stated that the odor around railroad offices was such as to demoralize men, and to make them disregard their solemn obligations and their duties to their fellow-men; and further, that it tended to make them disregard their solemn oaths when they come upon the witness-stand; that they are educated to throw baggage and destroy it, to throw it off the trains and tumble it in heaps; and further, that they are educated to snub passengers on every occasion, and not to give a civil answer when asked a civil question. It was stated that the employés of the company performed its bidding without regard to right or wrong, and that they go on the witness-stand to testify to whatever they are given to understand by the railroad company that they want them to testify to. It was stated that there are few men who dare to enter into litigation — 408 — with a railroad company because it has a legal department, and has lawyers hired by the year, and therefore had no care what the cost of the litigation might be. A comparison was made betweem the defendant company and another railroad company which operated a road through the town where the court was held, in which it was stated that the policy of one was to treat everybody decently, rightfully and well, while the policy of the other was different, and that the defendant should be taught a lesson by the imposition of heavy punitory damages. In speaking of witnesses who had given testimony against the plaintiff below, an allusion was made to the fact that there was a man killed down there about six years ago, and that there were some of these witnesses who would cut another man’s heart out, men who would kill another man’s cow, and would steal another man’s rocks; and that these were the kind of men whom the railroad company had brought to assail Dwelle’s reputation for truth and veracity. This line of argument was continued at considerable length. These statements were not based on the testimony, aud most of them were wholly incompetent, and of a very prejudicial character. It requires no discussion to show that couusel went far beyond the scope of legitimate argument, and their course in dragging extraneous matters and facts before the jury, which manifestly tended to excite their prejudices, merits disapproval and the setting aside of the verdict, which was apparently influenced by the misconduct. (Huckell v. McCoy, 38 Kas. 54, and cases cited.) In the course of the argument, counsel from the plaintiff below read from the case of Railroad Co. v. Weaver, 16 Kas. 462, and over the objection of the opposing party. That portion which was read contained expressions of the opinion of the writer with regard to the rule of accountability of railroad companies, and also of the conduct of the servants and employés of railroad companies toward the public. If the law of -the Weaver case is pertinent and proper, it should have been presented to the jury in the charge of the court. The- statement of what purports to be facts in the opinion — 409 — read to the jury was also inapplicable and should have been excluded. These facts were not introduced in evidence before the jury, nor in fact could they have been. Hearsay evidence is not admissible, whether given by a witness, stated by one of the counsel in his argument to the jury, or read from the official report of a decision made by the supreme court. All matters not in evidence and not pertinent to the issue cannot be brought before the jury upon any pretense. In the case of The State v. Wait, ante, p. 310, the question of the right of counsel to read to the jury from an opinion published in the Supreme Court Eeports, statements with regard to facts in another case is denied, and numerous cases are cited in support of that ruling. All these matters were calculated to divert the attention of the jury from the testimony and the real-issues in the ease, and to prejudice them against the defendant. It is claimed, and is true, that objections were not made to all of the statements, but the attention of the court was called to the objectionable language at the beginning of the argument, and as that was overruled, the party refraiued from pressing further fruitless objections. The question is fairly raised by the objection that was made and the exception that was taken, and it was the duty of the court thereafter to regulate the course of the argument and to exclude from the jury the extraneous and improper statements. Prima faeie, these statements were prejudicial, and where it appears that they may have prejudiced the jury and led to the bringing in of the verdict that was rendered, a new trial should be granted. We are not left to determine from the statements of counsel alone, as to whether the verdict was influenced by the passion and prejudice of the jury. The court below, who watched the conduct of the trial and the effect of the argument upon the jury, has found that the verdict was excessive, and that it was probably influenced by the misconduct of the prevailing party. In passing upon the motion for a new trial, the court makes the following statement: “My judgment is, gentlemen, and it has been since (he — 410 — verdict and findings were returned, that the amount of damages awarded in this case is excessive, and, considering the argumeut of counsel to the jury, might have been given under the influence of passion and prejudice. Upon that point I fear that I committed error myself in allowing the address of plaintiff’s counsel over the protest and objections of the counsel for the defense. It struck me throughout as being heated and inflammatory, and calculated to arouse the passion and prejudice of the jury. It struck me at the time as being a character of address that would be difficult for a jury, unless exceptionally discreet and fair-minded and strong-minded, to resist.” 4. Conduct nf Sveinmages; new trial. The court, having thus found, ordered a new trial unless the plaintiff below would remit one-half of the damages, and in pursuance of that direction the judgment was reduced from $4,000 to $2,000. We think the court ^ ’ should have gone further, and have granted a new trial absolutely. If the jury were influenced by passion and prejudice in rendering the verdict which the court found to be excessive to so great an extent, there was sufficient grounds for holding that the entire verdict and all the questions in the case were likewise influenced. From the testimony in the case, we agree with the judgment of the district court, that the verdict is excessive; and when it is found that a verdict so grossly excessive as this, has probably been influenced by passion and prejudice, this court will not hesitate to reverse the judgment and grant a new trial. (Railroad Co. v. Cone, 37 Kas. 567; Steinbuchel v. Wright, 43 id. 307, 23 Pac. Rep. 560; Cassin v. Delaney, 38 N. Y. 178.) The judgment of the district court will be reversed, and the cause remanded for a new trial. All the Justices concurring.