New York, L. E. & W. Ry. Co. v. Bennett et ux., 50 F. 496

Swan, District Judge, (after stating the facts as above.') Under the form •of action adopted it was essential to recovery that the plaintiffs should establish either a breach of defendant’s express contract, evidenced by the ticket, ior the carriage of plaintiff to New York, or by competent evidence, that defendant, by its agents, conductors, or servants, had violated the implied contract to protect its passengers against insult and violence, which the law attaches to the duties of a common carrier of passengers. It is not contended that the case made by the plaintiff meets the first of these requirements.

Plaintiff, through'her husband, had applied for and accepted a second-class ticket, which expressed, it is admitted, the contract between the company and herself for her transportation to New York. It was such a ticket as she had been accustomed to purchase for that route. Having accepted it, she was hound by its terms, whether or not she knew or read them. Boylan v. Railroad Co., 132 U. S. 150, 10 Sup. Ct. Rep. 50; Fonseca v. Steam-Ship Co., 153 Mass. 553, 27 N. E. Rep. 665.

It provided among its printed conditions that “no agent or employe has power to modify this contract in any particular,” and in its body, and upon the margin of each of its constituent coupons, notified the holder of its class and limitations. In the face of these notifications no assurance given plaintiff by the baggage master or the ticket agent at Cincinnati, of whom she claims to have made inquiries, could confer any right of transportation not expressed by the ticket itself, even had those officers been employes of defendant, which is not shown. Boylan v. Railroad Co., supra.

As between the conductor and the passenger, the ticket was conclusive evidence of the extent of the latter’s right of transportation, and the conductor had no authority to give it any greaier effect by permitting plaintiff to travel on that train. Frederick v. Railroad Co., 37 Mich. 342; Hufford v. Railway Co., 53 Mich. 118, 18 N. W. Rep. 580; Mosher v. Railroad Co., 127 U. S. 390-396, 8 Sup. Ct. Rep. 1824; Boylan v. Railroad Co., 132 U. S. 146-150, 10 Sup. Ct. Rep. 50.

The failure of the train on the Cincinnati Southern Railroad to make connection at Cincinnati with that upon which plaintiff was entitled to travel was not the fault of defendant, nor did it impose any obligation upon it to transport plaintiff on the train from which she was ejected. Her contract gave her no right of passage on that train, as plainly appears from its terms. No other is pleaded or proved. She was therefore wrong in her refusal to leave, and became thereby technically a trespasser, to whom the railroad company owed only proper care and civility until her removal could be lawfully effected.

Edwards v. Railroad Co., 81 Mich. 864, 45 N. W. Rep. 827, and cases cited. We are brought, therefore, to the examination of the incidents preliminary to and attending her removal from the train, which is the only remaining ground of action.

The declaration avers that defendant’s conductor was guilty of using “violent, abusive, and rough language towards plaintiff;” that he employed “force and violence” in ejecting her; and, in substance, charges that “defendant’s several wrongs and outrages as aforesaid, [meaning thereby the conductor’s language, and the violence used in plaintiff’s ejection,! and * * * the wrongful, cruel, and inhuman treatment of plaintiff' by defendant, its agents and servants,” caused plaintiff’s illness, and the permanent injury and disability for which, inter alia, the suit is brought.

There is no évidence that any violence was offered plaintiff, or any force employed, to effect her removal from the car to the waiting room at Dayton. The learned judge who tried the cause declined to direct a verdict for defendant upon the whole evidence, and submitted to the jury the determination of the question whether the evidence made a proper case for punitive damages. His rulings on these points were seasonably excepted to, and error is assigned upon them. Without repeating the narrative of Mrs.

Bennett, the substance of which, relative to the manner and incidents of her removal from the train, is given above, we are constrained to hold that these rulings were erroneous. To warrant the recovery of exemplary or punitive damages “there must have been some willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences,” (Railroad Co. v. Ames, 91 U. S. 495;) or, as it is put in Philadelphia, etc., Co. v.

Quigley, 21 How. 213, 214: “Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful,or injurious act. The word implies that the act complained of was conceived in the spirit of mischief or of criminal indifference to civil obligations. ” The later cases are to the same effect. Railroad Co. v. Humes, 115 U. S. 521, 6 Sup. Ct. Rep. 110; Barry v.

Edmunds, 116 U. S. 550-563, 6 Sup. Ct. Rep. 501; Railroad Co. v. Harris, 122 U. S. 597-609, 7 Sup. Ct. Rep. 1286. While it is for the jury, in a proper case, to determine the character of the wrong inflicted, and the measure of damages to be applied, the evidence must justify the court in submitting to them either or both inquiries as questions of fact. Plaintiff was on the train under an entire misconception of her contract relations to the carrier, and without right. Of that fact and its consequences she was fully informed by the conductor.

If, in imparting that information, and the performance of the duty to his employer which plaintiff’s refusal to leave the train, and her failure to pay the fare, devolved upon him, his language was opprobrious and insulting, or his conduct oppressive and contumelious, the corporation is undoubtedly responsible civiliter for the tort.

The law, however, is not so unreasonable as to exact from the conductor of a passenger train, or the master of a steamship, upon whose vigilance and competency the lives and safety of passengers are dependent, a rigid observance of the formal amenities of social life, in the necessarily hurried discharge of his varied and important duties. It requires that he shall demean himself with civility, and shall protect passengers from insult and violence from others. Beyond this it ‘has no standard of conduct, no code of manners.

Of necessity, his communications with his passengers are in the main purely of a business nature. He has scant time for explanations; none for discussion or loquacity. The natural effect of his great and urgent responsibilities is to beget a characteristic brevity and bmntncss of manner and speech, varying in degree with the temperament and circumstances of the individual, often perhaps displeasing to the sensitive and inexperienced traveler, yet as far removed from legal censure as the demand of a lawful right in terse phrase.

While his own and his employer’s interest would be best served by a uniformly complaisant speech and .demeanor, the mere lack of both is not insult; nor is his failure to gauge his address to the sensibilities, temperament, or latent ailments of his passengers an actionable dereliction.

When called upon to declare the invalidity of a ticket, orto deny a passenger’s claim to transportation, or to announce his duty to eject a person who refuses to pay fare, if he uses only the customary plain and positive diction of business, his employer cannot be mulcted in damages, or legally reprehended for his plain speaking or peremptory maimer. Rose v. Railroad Co., (N. C.) 11 S. E. Rep. 526.

Accepting plaintiffs own testimony as to what transpired between herself and the conductor, and laying out of view entirely the latter’s version, there is no legal basis for the instruction which permitted the jury to award exemplary damages against the defendant. There was neither vituperation, epithet, contumely, nor aspersion in the language used by the conductor.

It ivas a plain, matter of fact announcement that under the rales of tho company, which left the officer no discretion, he could not accept the ticket she tendered for her transportation on that train, and she must leave the car at Dayton, or it would be his duty to remove, her. Less than this he could not lawfully have done. More than this he did not do. There is even no complaint that this was said in a loud tone. True, she says of the conductor’s manner: “It was very rough. So much so that is what scared me most. If he had spoken pleasant, it would have been so much better.

Ho spoke in such a commanding way.” The concluding phrase of this extract from her testimony at once defines the extent of her grievance, and is the severest criticism she makes upon the treatment of which she complains. The legal criterion of the conductor’s address and conduct must be found in his language and manner, not in the plaintiffs opinion of their propriety, nor the epithets aud adjectives by which she characterizes them. An imperative maimer and form of speech ⅛ not actionable.

Something moro tangible than these is necessary to sustain an action of this nature, and, a fortiori, liability to exemplary damages. Plaintiff’s ivas a mortifying experience, and its consequences are to be regretted, but they must be charged to her own negligence in taking the wrong train, and her refusal to comply with the lawful demand of the conductor, which necessitated and justified her ejection, the circumstances and place of which arc not ojien to legal criticism.

For the error pointed out in the instruction as to the liability of defendant to exemplary damages, and for the refusal of the court to direct a verdict for the defendant, the judgment must be reversed, and a new trial granted. It is unnecessary to decide the other questions presented by the bill of exceptions. Judgment reversed, with costs, and a venire de novo ordered. •