Central Railroad & Banking Co. v. Strickland , 90 Ga. 562 ( 1892 )

Lumpkin, Justice.

1. The motion for a new trial assigns error upon various refusals of the court to charge the jury, as set forth in the 4th, 5th, 6th, 9th and 11th grounds thereof, and also upon charges made .by the. court, • as stated in the 12th and 13th grounds, all of which will appear in the reporter’s statement. Without discussing these numerous grounds seriatim, we have endeavored, in the first head-note, to formulate and condense what we understand to be the law applicable. In the transaction of business between a railroad company and the public, there should be an exercise of good faith on both sides, and each should conscientiously endeavor to deal fairly with the other. In the matter of keeping an office open for the sale of tickets, the agent of the company should not so neglect the same as to subject passengers to unnecessary trouble, delay , and inconvenience in procuring their tickets; nor, on the other hand, should the temporary absence of the agent from his office on necessary business afford a passenger a pretext for failing to purchase a ticket when, by a little patience, he could easily have obtained one. Persons desiring tickets should exercise proper diligence in applying for them, but are not bound to wait upon the agent an unreasonable length of time, nor to call again and again at his office, when proper attention to his business would have rendered this unnecessary. It is also true that the agent at a way-station, who has various duties to perform, is not bound to keep the ticket office open, and remain in attendance thereupon, every moment up to the time when he may lawfully close it. It seems to us there should be no great difficulty in any given case in determining whether or not the passenger exercised proper diligence, or the agent gave fair and reasonable attention to his duties. Applying the rule that good faith, common honesty and courteous treatment should be observed on both sides, any fair mind ought to be able to decide readily who is in fault when a passenger fails to procure a ticket. It is at last simply a question for the jury, and in solving it they should apply to the facts proved the rule of the law above laid down. As to the relative rights of a passenger found upon a train without a ticket, and of the company in such a case, see Ga. So. & Fla. R. R. Co. v. Asmore, 88 Ga. 529.

2. When a passenger for want of a reasonable opportunity to purchase a ticket has boarded a railroad train, and in consequence has a right to do so without a ticket, he is entitled to complete his journey by paying the conductor the ticket rate for his fare. There is no rule of law, of which we have any knowledge, requiring him to leave the train at a station en route and purchase a ticket back to the one whence he started, and another to his destination. A request to charge that the plaintiff was under any obligation to do this, was properly refused. The request was based on the idea that a ticket from the intermediate station to the station from which the plaintiff started, would have been good either way; but be this as it may, no passenger rightly on a train without a ticket at the beginning of his journey should be subjected to any such inconvenience.

8. By one of defendant’s requests the court was asked, in effect, to instruct the jury that passengers are bound to use all reasonable care and diligence to conform to the rules of the railroad company. It is clear, without discussion, that a passenger would not be bound to conform to an unreasonable rule of the company. The request being wanting in this necessary qualification, was of course properly refused.

4. It cannot be denied that a railroad company, or any other person, has the right to employ a colored servant, and may require of such servant the performance- of all proper duties which fall within the scope of his employment. To establish the contrary of this proposition would lead to consequences utterly absurd and unreasonable, and would result in endless trouble and ineon.venience. This is too plain for argument, and consequently there can be no wrong or impropriety in the employment by a railroad company of a colored train-hand; and it is equally apparent that this train-hand may, if necessary, be called upon by the conductor to assist in ejecting a passenger from the train who has no right to be upon it. If the passenger is lawfully and rightfully ejected, he certainly would have no cause of action against the company merely because a colored employee assisted in putting him off. This being true, the wrongful ejection of a passenger is not aggravated by the fact that the conductor called upon a colored train-hand for assistance in making such ejection. Of course, we do not mean to intimate that there may not be aggravating circumstances attending the improper expulsion of a passenger from a train, which should increase the amount of his damages' for the wrong done him. Physical injuries, insults by word or act, personal indignities, actual violence or unnecessary force, making an improper or unseemly demonstration, calling for assistance when it was manifestly not needed and the only effect of it would be to mortify and humiliate the passenger, and many other things of like character, may and should increase the damages in cases of this kind, and we do not desire to be understood as holding to the contrary. But we do rule distinctly and unequivocally that the race question is not properly involved in such transactions, and that it is unlawful to hold a railroad company liable for greater damages than the amount for which it would be justly liable were the employee aiding in the expulsion of the passenger a man of his own color. In our opinion, therefore, the court erred in refusing to charge the request contained in the 10th ground of the motion. Especially under the circumstances attending the trial of the present ease, do we think the defendant company was entitled to have the jury instructed as to the law governing its liability in this respect. Counsel for the plaintiff, in arguing the case before the j ury, had insisted that his client was entitled to greater- damages because the conductor called upon a “nigger” employee to aid in putting him off’. In fact, the “nigger” did not touch the plaintiff', but the charge requested was specially pertinent in view of the argument, and the refusal of it not improbably worked a hardship on the company.

5. The jury in fixing the amount of damages which should be allowed to a passenger for a wrongful expulsion from a railroad train, may take into consideration all the surrounding facts and attending circumstances, including, of course, “the inconvenience he was put to by being put off.” This is one of the necessary elements in arriving at the proper amount to be allowed one upon whom a tort of this kind has been committed.

6. As this case will be tried again, we express no opinion as to whether or not the plaintiff should recover any amount whatever; but we adj udge that the verdict rendered at the last trial was so grossly large and excessive that it cannot be sustained. Even if the plaintiff was without fault and the railroad company entirely in the wrong, there was nothing in the facts or circumstances shown by the record to warrant a verdict for the sum of $1,500.00. We are constrained to say this verdict must have resulted from bias or prejudice, and for this reason alone we would deem it our duty to order a new trial. We do this the more readily, however, because of the argument of plaintiff’s counsel to which reference has already been made, and the refusal of the court to counteract the effect it must have produced upon the minds of the jury by giving the charge requested. Judgment reversed.