Gibson v. East Tennessee, V. & G. R.

Hammond, J.,

(orally.) The ejection of the hoy was the same thing as the ejection of the mother, as it was unreasonable to ask her to leave the child, under the circumstances, and proceed on her own ticket, about wliich there was no dispute, although the conductor offered to take that course.

On the measure of damages, the court adheres to the rule announced in Hall v. Memphis & C. R. Co., 15 Fed. Rep. 57, that, whenever there is a reasonable ground to dispute the right of the passenger to ride on the ticket he has, it is the duty of the passenger to pay the additional fare demanded by the conductor, if able to do so, and rely on the remedy to recover the amount before a justice of the peace or other competent court, and that damages cannot be increased by an obstinate resistance to the demands of the conductor, and by forcing- him to expel the passenger from the train. The passenger can take that course, undoubtedly, and sue for damages for a breach of the contract or of the public duty of the carrier; but his own unreasonable conduct in resisting a fairly reasonable demand of the conductor can be taken by the jury as a mitigation of damages, and will reduce them to nominal or actual damage sustained by the delay.

If the question were one of contract only, the plaintiff could recover no more than the $5.15 demanded, and by the paying of which all other damage could have been prevented. But this is an action against the carrier for breach of duty as carrier, and the plaintiff is entitled to recover such damages for the expulsion, if wrongful, as the jury may determine upon the facts of the case: and, because of the peculiar nature of such actions, the unreasonable conduct of the plaintiff, if the jury find it so, can only be taken in mitigation of the damages to be awarded by their verdict.

A conductor cannot stop to try the disputed question of fact, and, if so required, he must always take the passenger’s word as to the age of a child, or involve his company in a claim for large damages for any mistake lie might reasonably make. The company is responsible for the mistake, but, in awarding damages, the jury will look to the circumstances, and say whether he wras unreasonable in making the dispute, or acting upon his honest belief that the child was over age. If it were an infant of tender years, and he made the unreasonable claim that it’ was over age, the jury would award larger damages than if it were a large and over-grown child, closely bordering on the limit, and having the appearance of being over the age. In the latter case, the passenger would be unreasonable to insist on rejection, and could then recover only nominal or actual damages, to be confined to such extraordinary expenses as were incurred by the delay and the loss proved to have resulted by the detention; but no compensation for injured feelings or wounded sensibilities or the like. The age of this child is disputed, and the jury is required to settle that question of fact. If over the age of 12 years, the plaintiffs can recover nothing; if under, such damages as the jury may fix under the rule laid down.