Illinois Central Railroad v. Harris , 81 Miss. 208 ( 1902 )

Terral, J.

delivered the opinion of the court.

Appellee on Sunday evening, the 3d day of March, 1901, bought of the agent of appellant at Ridgeland an excursion ticket to Jackson and return, good for that day only. Late at night on the same day he boarded train No. 26, which was the only train upon which he coul(d return; and after passing Tugaloo, and before reaching Ridgeland, he was, according to the evidence made on his side of the case, ejected from the train with insult and violence. He sued the company, recovered judgment for $75, and the company appeals.

The trial court instructed the jury that, if train No. 26 was the only train upon which appellee could return to Ridgeland that day, his expulsion therefrom was wrongful. The company insists that the instruction was error, and cites Railroad Co. v. Rodgers, 80 Miss., 200 (31 South., 581), as being opposed to this view of the law. But in that case Rodgers returned home the next day on his excursion ticket, and could have returned by one or more trains on the day he was refused passage on No. 6 — a fast train not stopping at Egremont — if he had desired to do so; yet, declining to return on trains that would have placed him at home that day, he complained that a fast train, not scheduled for Egremont, excluded him from passage on it. In reply to repeated offers to bribe him, Conductor Howard made a slighting or insulting remark to Rodgers, but that incident was not a factor in the case. Having had opportunity to return to Egremont on the very day that he was refused passage by Conductor Howard, and having yet two days more for a return to Egremont, he insisted on returning to Egremont by the only train that never stopped at -that point. That case was quite different from the one before us. It was, however, shown here, for the railroad company, that train No. 26 was not scheduled to stop at Ridge-land, and that the agent at Ridgeland, when selling the round trip ticket to Harris, told him that if No. 26 should be late, or behind its scheduled time, he would find difficulty in returning upon it, and that Harris replied he would take the chance. Appellant showed also, that Harris, upon boarding the train at Jackson, was warned by the flagman that the train did not stop at Ridgeland, and that he said he would get off at Tugaloo, or go on to Madison, and that the flagman permitted him to remain on the train upon that condition. It is evident that what passed between the flagman and Harris and Jackson was of no consequence, because the rights and duties of the parties were fixed by the ticket held by Harris. Wells v. Railroad Co., 67 Miss., 24; s.c., 6 So. Rep., 737.

We further think the right of Harris to return on No. 26 was not affected by the statement of the agent at Ridgeland that, if the train was behind its scheduled time, he would experience difficulty in returning upon it; for he could not in that manner curtail or diminish the rights evidenced by the ticket which he was writing for the company. The uncontradicted proof was that No. 26 was on time, but, if it had not been on time, it would not have affected the merits of the controversy. Harris had a ticket for returning that day to Ridge-land, he entered the only train that could put him there on that day, and he was not a trespasser, but was rightfully thereon. Head v. Railway Co., 79 Ga., 358; s.c., 7 S. E. Rep., 217; 11 Am. St. Rep., 434. To sell Harris a coupon ticket to return on that day, and then to deny him the right to passage upon the only train that could return him to his destination, would have operated as a palpable fraud upon him. We think his ticket gave him a light of passage on No. 26, and that his ejection was wrongful, and the instruction of the learned judge was not error.

The punitory damages imposed by the jury were not inflicted in consequence of the putting Harris off the train, but .for insult and violence in so doing; and the question relating thereto was fairly submitted to the jury, and we do not understand counsel to challenge the instruction of the court or the finding of the jury in this respect.

The refusal of the court to grant to defendant its ninth and thirteenth requests for instruction to the jury is earnestly argued as matter of error; but, if the views expressed in the first part of this opinion are correct, their refusal was not error.

Affirmed.