Patry v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

LyoN, J.

I. The rulings of the circuit court denying the respective motions of the defendant for a nonsuit, that the court direct a verdict for the defendant, and for a new trial, raise the question whether the testimony was sufficient to authorize the court to submit to the jury the question of defendant’s liability in the action. The defendant is thus liable if the negligence or wrongful acts of its conductor or brakeman on the train from which plaintiff was put off at Badger Mills was the proximate cause of the injuries of *224 which she complains, unless she also was guilty of negligence which contributed directly to such injuries. On the subject of the alleged contributory negligence of the plaintiff, it is sufficient to say that, if the testimony tends to prove any such negligence on her part, the same was not conclusively proved, and hence, if the testimony was sufficient to raise that question, it was properly submitted to the jury. If not sufficient to raise it, the defendant has no reason to complain because the same was so submitted.

Were the injuries complained of directly caused by the negligence or wrongful acts of the conductor or brakeman or both? The learned circuit judge instructed the jury, correctly no doubt, that it was the duty of the plaintiff to ascertain before entering the train that it was the one she desired to take, and if she refused to pay her fare the conductor had a right to put her off the train; also that it was her duty to make herself understood, and the defendant company was not required to provide an interpreter for her. The accuracy of these propositions does not seem to be controverted by counsel for the plaintiff.

The testimony of the plaintiff tended to prove that she exhibited her return ticket on the Central road to the brakeman, and that he put her on the train. If these facts were proved she was lawfully on the train, and it was the manifest duty of the company either to return her, without charge for fare, to the place from whence she started, or to leave her at some other point where she could most speedily, conveniently, and safely reach a train of the Central road which would take her to her destination at Boyd. If she was thus on the defendant’s train because of the mistake of the brakeman in respect to her ticket, she was not subject to the provisions of sec. 1818, R. S. That section is as follows: “ If any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage off the cars, on *225 stopping tbe cars and using no unnecessary force, at any usual stopping place, or near any dwelling-house, as the conductor shall elect.” If, therefore, the jury found that .she showed the brakeman her ticket when she went upon the train, it was a question of fact for the jury to determine whether, by putting her off the train at Badger Mills, the raffway company performed its duties and obligations to her as above stated. If the company failed to do so, the plaintiff is entitled to recover damages for any injury she suffered by reason of such breach of duty.

If, on the other hand, the jury believed that she did not show her ticket to the brakeman, as the latter testifies, then .she was subject to the provisions of said sec. 1818; and, if -she refused or neglected to pay her fare on demand of the conductor, he had a right to put her off the train at any place answering the requirements of the statute. In that ■case, however, she was still a passenger upon the train, and •entitled to be treated as such in all matters pertaining to her safety.

There is considerable controversy in the arguments of ■counsel as to whether Badger Mills is such a place as is described in the statute. The same being a place at which trains did not stop unless signaled to do so, it may be doubtful whether it is a “ usual stopping place,” within the meaning of the statute. But however that may be, the plaintiff was put off the cars near a dwelling-house which was at the time occupied as a residence. This fact fulfills the alternative requirement of the statute, notwithstanding the occupant of such house was temporarily absent therefrom and the house closed during the time the plaintiff 'was there. Hence we conclude that if the plaintiff did not show her ticket to the brakeman, but went upon the train by reason of her own mistake, and neglected or refused to pay her fare when the conductor demanded it, the latter was justified in putting her off the train at Badger Mills. *226 Whether the conductor demanded her fare or not is a disputed question of fact in the case, to be determined by the jury.

The foregoingrules may be thus summarized: If the plaintiff showed the brakeman her ticket, the conductor was not justified in putting her off the train at Badger Mills, unless that was a reasonably safe and convenient point from which she could most expeditiously reach a train on the Central road. It is quite immaterial that the conductor did not know that she had shown her ticket to the brakeman. The company would still be bound by the act of the brakeman,' and liable for any injury which might befall the plaintiff by reason of his mistake. If the plaintiff did not exhibit her ticket to the brakeman, and if the conductor demanded fare of her which she did not pay, he was' justified in putting her off the train at Badger Mills, and the company is not liable in this action.

There may be passages in the charge of the - learned circuit judge to the jury which do not accord with the foregoing rules. If any such occur therein, they can readily be corrected when the cause is again tried. It is clear, however, that there was sufficient testimony to make it the duty of the court to submit to the jury the question of defendant’s liability, under proper instructions.

II. The court erred in instructing the jury that in certain contingencies they might award the plaintiff exemplary damages. There is no testimony in the case tending to show that the conductor acted in a reckless, wanton, or insulting manner, or that he was influenced by malice or any other improper motive. On the contrary, it conclusively appears that he acted throughout in a considerate and gentlemanly manner, and in the belief that he was only discharging his imperative duty to his employer. Such being 'the facts, as a matter of course this is no case for the infliction of punitory damages, and would not be, even were *227 tbe action against tbe conductor instead of tbe company. But if tbe conductor so treated tbe plaintiff as to be bable to punitory damages, were tbe action against bim, still under tbe rule wbicb prevails in this state, established in Craker v. C. & N. W. R. Co. 36 Wis. 657 , Bass v. C. & N. W. R. Co. 42 Wis. 654 , and other cases, tbe defendant company is not so liable, for tbe reason that there is no testimony tending to show any ratification by it of tbe acts of tbe conductor. Under tbe above cases, bad tbe company retained tbe conductor in its employ after having been fully informed of bis conduct as tbe plaintiff claims and tbe jury found it to have been, that would have been a ratification of bis conduct, wbicb would subject tbe company to liability for punitory damages. But there is no testimony in tbe case tending to show tbe existence of these essential facts.

Counsel for plaintiff argued that tbe jury would have been justified in assessing tbe plaintiff’s compensatory damages at $5,000, and claims therefrom that tbe error in authorizing them to give exemplary damages should not work a reversal of tbe judgment. We do not assent to tbe proposition that tbe jury might properly have assessed compensatory damages at $5,000, and did we assent thereto it would not save tbe judgment. There are no means of ascertaining whether tbe damages include punitory damages or not, and tbe fact that it may include them renders tbe error of tbe court material and fatal to tbe judgment.

By ihe Oowrt.— Tbe judgment of tbe circuit court is reversed, and tbe cause will be remanded for a new trial.