Louisville & Nashville Railroad v. Maybin , 66 Miss. 83 ( 1888 )

Arnold, C. J.,

delivered the opinion of the court.

This suit was brought by appellee to recover damages for being-' unlawfully ejected as a passenger from one of appellant’s trains. He bought an excursion ticket, at a cheap rate, at New Orleans,, good for the round trip, from that place to Ocean Springs, Mississippi. The ticket was not transferable. Appellee was accompanied! by his son, who was over twenty-one years of age, and who had a ticket similar to his father’s. Shortly after the train left New Orleans, the conductor examined and punched appellee’s ticket in the usual way. It is shown and admitted, that before reaching Ocean Springs, appellee’s son sold his ticket to another person. The conductor was informed of this, and was told also, that appellee had sold or given away his ticket. Thereupon the con■ductor went to appellee, but what passed between them, is a matter ■of dispute. It is certain that his ticket was not produced, and that in a short time afterward, appellee left the train.

There is irreconcilable conflict in the testimony as to what occurred between appellee and the conductor. It appears from the testimony for appellee, that he had not sold or disposed of his ticket, and that the conductor, with other employees on the train, ■came to appellee after the train stopped, and just before it left Pass Christian, and that the conductor laid his hand on him, and with rude and insulting language, required him to leave the train, and that he was not given time to exhibit his ticket.

According to the -testimony for appellant, the conductor did nothing more than to ask appellee, some time before the train reached Pass Christian, to let him see his ticket, and when the ticket could not be produced, he announced to appellee, that he must pay for the balance of the trip, or leave the train at the .next station, and when the train stopped at Pass Christian, the next station, appellee got off.

The rights of the parties depend upon which of these conflicting statements of facts is accepted as true. If it be true that appellee had not sold or disposed of his ticket, and that he was abused and insulted, and required to leave the train, without being given reasonable time to produce his ticket, he was entitled to recover, not only nominal, but exemplary damages such as the jury might award. Forsee v. A. G. S. R. R. Co., 63 Miss. 66, and authorities therein cited.

But, on the other hand, if appellee had sold or disposed of his ticket, or was unable to exhibit it within a reasonable time after being requested to do so by the conductor, and refused to pay the usual fare for the balance of the trip, and was required, without abuse, insult, or unnecessary force or violence, to leave the train, he was not entitled to l’ecover anything. 2 Rorer on Railroads 980, 982; 2 Woods Railway Law, § 350.

The instructions given to the jury, fairly presented these views of the law, and the action of the court in giving and refusing instructions, furnishes no cause for reversing the judgment.

The father was not responsible for the acts of his son, over twenty-one years of age, and the fact that the son sold his ticket, did not justify the conductor in ordering the father to leave the train or ejecting him from it, and it was not error to so instruct the jury. The authorities cited by appellant against this instruction, do not apply, because they refer to the case of a person traveling, with a child or children liable to pay fare, under his charge, but whose fare had not been paid, and it was held that such person, notwithstanding his fare had been paid, might be ejected from the train with the child or children, unless their fare was also paid.

The errors assigned in regard to the admission and exclusion of evidence, are without merit, except that appellee should have been permitted and required to answer the question propounded to him on cross-examination, what became of his ticket. He had testified that he had not sold or given it away on the train, and that it was in his possession after he left the train, but it was not produced or accounted for on the trial.

Plainly, this was proper subject of cross-examination, to ascertain the truth, and to enable appellant, if it could do so, to contradict the witness by his own testimony, or to lay the foundation of contradicting him by others.

For the error of sustaining the objection made to this question, and for refusing to allow appellee to be cross-examined on this subject, the judgment is reversed and a new trial awarded.