
    (Greene County Common Pleas.)
    RUFUS GUY v. THE P., C., C. and ST. L. RY. CO.
    A passenger upon a railway train is entitled to a reasonable time after demand by the conductor to deliver a tickst or pay lawful fare, or to go to another car of same train and obtain money to pay his fare, from one ready and willing to furnish same for that purpose.
    If he absolutely refuses to deliver a ticket or pay fare, he has the right to change his mind and pay; but this.be cannot do after he has been accorded a reasonable time under all the circumstances to comply, if be persists in his refusal until the bell has been rung by the conductor signalling the engineer to stop the train for the purpose of ejecting him.
   Charge to Jury.

SMITH J.

Plaintiff alleges in his pitition that defendant is a corporation duly incorporated under the laws of the state of Ohio, and on the 22d day of September, 1893, owned and operated a railroad and was a common cairier of passengers between the city of Springfield, in Clark county, Ohio, and the city of Xenia, in Greene county, Ohio. On the night of said day, to-wit: Between the hours of seven and eight o’clock rthe plaintiff being then a passenger on the cars of said defendant) between said cities of Springfield and Xenia, the defendant unlawfully, violently and maliciously assaulted and beat plaintiff and ejected him from its cars at a time when it was very dark and rainy, and at a point in the woods along the line of defendant’s road entirely unknown to plaintiff, about six miles from the village of Yellow Springs, to which place plaintiff was obliged to walk through the rain before he could obtain shelter or a place to lodge. Plaintiff was compelled to seek the charity of friends in said village for lodging and shelter over night. Bjr reason of said exposure to the said tain and weather and said long walk, plaintiff, who was already in bad health, contracted a severe cold and became sick, by reason of which sickness he was uh-able to attend to his business for several days and incurred large expense for med ieine in trying to cure himself, to his damage one thousand dollars, for which he prays judgment.

Defendant, by answer, admits that it is a corporation duly incorporated under the laws of Ohio, and that on September 22. 1893, it owned and operated a railroad and was a common carrier for hire between the points named in the petition. Defendant denies that on the night of said day plaintiff was a passenger on its cars between said cities of Springfield and Xenia, and denies that its employees on said night unlawfully, violently and maliciously assaulted and beat plaintiff, but on the contrary defendant avers that on the night of said day the said plaintiff took passage on one of the trains of said defendant at the city of Springfield aforesaid, and after leaving said city, when the conductor of said train in collecting fares approached said plaintiff and demanded his fare, the said plaintiff refused to pay the same, either by way of a ticket or in cash. Whereupon said train was stopped at a station called Enon crossing, and plaintiff was ejected therefrom without any more force or violence than was necessary to put him off said train. Defendant avers that it does not know whether plaintiff was compelled to seek the charity of his friends in the village of Yellow Springs for lodging and shelter over night or not, but admits that it is quite likely true. Defendant denies all and singular the allegations of said petition not expressly admitted.

Plaintiff for reply to said answer denies that he refused to pay his fare, and avers that his fare was offered to be paid to said conductor, who refused to accept the same or to allow plaintiff an opportunity to make a tender thereof as plaintiff was trying to do when ejected from said train. He denies that when he was ejected that said tram had stopped at Enon Station or crossing, or. at any other station or crossing, and denies that said conductor did not use more force or violence than was necessary to put plaintiff off of said train.

The gist of the action is the alleged wrongful ejection of plaintiff from said train. If, however, the ejection be found to have been lawful, then you are to determine whether more force or violence was used by'defendant’s agents than was necessary to effect plaintiff’s expulsion from said train.

The burden of proof m this case is upon the plaintiff, Guy; that is, upon him is cast the burden of establishing such a state of facts as under the law would entitle him to recover.

It is not incumbent upon the defendant the Railway Company, to disprove the plaintiff’s allegation that he was malicously or wrongfully expelled, or that more force or violence was used than was necessary to effect his expulsion from the train.

It devolves upon the plaintiff to satisfy you by a preponderance of the evidence before he can recover anything, either that he was wrongfully ejected from said train, or that,if lawfully ejected, more force'or violence was used than necessary to effect his expulsion. By a preponderance of the evidence is meant that the evidence tending to establish such facts as would entitle plaintiff to recover must be of greater weight and more convincing as proof of such facts than the opposing evidence.

While plaintiff avers that defendant’s servants maliciously assaulted and beat him and ejected him from its cars, yet, to entitle him to recover in this action it is not necessary that he show that defendant’s servants acted maliciously, or with cruelty or vindictiveness. It is sufficient if he satisfy you by a preponderance of the evidence that the ejection was wrongful, or, not being wrongful, that more force or violence was used than was necessary to effect plaintiff’s expulsion.

The question of malice or vindictiveness may in a proper case bear upon the question of damages, and as to this I will refer later.

[Plaintiff having entered defendant’s cars to be carried from Springfield to Xenia, it was his duty upon demand made by the conductor of the train, to deliver to said conductor a ticket or pay the usual and lawful fare.

But he was entitled to a reasonable time under all the circumstances to comply with such demand. What would be a reasonable time would depend upon the facts and circumstances of eacli particular case. If one upon a passenger train persistently refuses to tender a ticket or pay fare after he has been given a reasonable time to comply with the demand of the conductor, he maybe lawfully ejected from such train, and there could be no liability of the railroad company arising from such ejection, unless more force was used than necessary to effect such expulsion. In ease of a lawful expulsion the law does not require that the expulsion be at a station or usual stopping place.]

To which portion in brackets the defendant excepted.

Where one upon a train absolutely refuses to deliver a ticket or pay fare he has a right to change his mind and pay, but this he cannot do after he has been accorded a reasonable time under all the circumstances to comply, if he persists in his refusal until the bell has been rung by the conductor, signalling the engineer to stop the train for the purpose of •ejecting him from the train. In such case he forfeits his right to be carried as a passenger, and may be treated as a trespasser,and his ejection may be completed even though he or some one for him may offer to pay his fare.

[If you find from a preponderance of the [evidence that when the conductor demanded of plaintff his fare, that plaintiff stated that he had neither ticket nor money, but that his father was in another car of the same train, and that he would immediately go to him and get the money and pay his fare; and if you further find from a preponderance of the evidence that the plaintiff’s father was in another car of ■said train and had sufficient money to pay plaintiff’s fare, which he was ready and willing to give plaintiff for that purpose, and that the plaiutiff immediately proceeded to go to his father on said car for the purpose of getting his fare and delivering the same to said conductor, but before the lapse of a reasonable time under all the circumstances to get his fare from his father, the conductor tnd brakeman, or brakeman alone took hold •of the plaintiff for the purpose of ejecting him from said train, and while proceeding to eject him,but before the lapse of a reasonable time under all the circumstances for plaintiff to tender his fare to said conductor, the plaintiff’s father tendered plaintiff’s fare to said conductor who refused to receive the ■same, but caused plaintiff to be ejected from said train, then said ejection was wrongful, and your verdict would be for the plaintiff.]

To which portion in brackets the defendant excepted.

[If you find from a preponderance of the evidencee that when the conductor •demanded plaintiff’s fare, plaintiff stated he had neither ticket nor fare; that his father was on said train and had his fare; that he would immediately go and get the same and pay his fare, and if you further find from a preponderance of the ■evidence that plaintiff’s father was in another car of said train and had money ■sufficient to pay said fare which he was ready and willing to give plaintiff for that purpose, and that before the lapse of a reasonable time under all the circumstances to go to his father to get his fare Jefferson Williams offered to pay plantiffs 'fare to said conductor who refused to accept the same, but caused plaintiff to be ejected from said train, then said ejection was wrongful, and your verdict would be for the plaintiff. ]

To which portion in brackets the defendant excepted.

If you find from a preponderance of the evidence that before the bell was rung by the conductor signalling the engineer to stop the train for the purpose of ejecting plaintiff, whether said plaintiff was ejected before the train reached Enon Crossing, or thereafter when the train left the siding at Enon Crossing,and while upon the main track, that either Jefferson Williams or George Guy offered to pay plaintiff’s fare, and that the conductor refused to receive the same, but caused the plaintiff to be ejected from said train, then said ejection was wrongful, and your verdict would be for plaintiff.

If you find that plaintiff has failed to show by a preponderance of the evidence that the conductor caused him tobe ejected from said train before the lapse of a reasonable time under all the circumstances to comply with the demand and pay his fare, or if you find that a reasonable time was allowed plaintiff under all the circumstances to comply with the demand of the conductor and pay his fare, but that plaintiff has failed to show by a preponderance that plaintiff or some one for him offered to pay his fare before the bell was rung signalling the engineer to stop the train for the purpose of ejecting him, then plaintiff cannot recover unless you find from a preponderance of the evidence that more violence was used than was necessary to effect plaintiff’s expulsion.

In other words the plaintiff, before he can recover, must show by a preponderance of the evidence either:

That the conductor caused him to be ejected from the train before the lapse of a reasonable time under all the circumstances to comply with the demand of the conductor and pay his fare.

Or if having had a reasonable time under all the circumstances to comply with such demand and pay his fare, that he or some one for him offered to pay the same to the conductor before the bell was rung by the conductor signalling the engineer to stop the train for the purpose of ejecting him which the conductor refused and caused him to be ejected.

Or that more force or violence was used than was necessary to effect his expulsion.

If any one of the above propositions is established by a preponderance of the evidence, the plaintiff would be entitled to recover.

If no one of the above propositions is established by a preponderance of the evidence, plaintiff cannot recover, and your verdict would be in favor of the defendant.

[If you should find from the evidence that the conductor when he went into the sleeper demanded a ticket or cash fare from the plaintiff, Guy, who refused either to produce a ticket or pay his fare, and if you further find from tne evidence that Jefferson Williams made no offer to pay plaintiff’s fare, and that the conductor and plaintiff then went forward into the passenger coach, and that after the train left the siding at Enon Crossng and while upon the main track the conductor rung the bell signalling the engineer to stop the train for the purpose of ejecting plaintiff and then proceeded to eject plaintiff using no more force or violence than was necessary to effect his expulsion, and if you find that when the conductor rang the bell signalling the engineer to stop the train for the purpose of ejecting plaintiff a reasonable time under all the circumstances had elapsed for plaintiff to comply with said demand and pay his fare, then the fact that plaintiff’s father when the conductor and brakeman, or brakeman, alone took hold of the plaintiff to eject him offered to pay his fare did not entitle the plaintiff to the right to be carried to his destination upon that train, and your verdict would be for the defendant even though the train may not have come to a stop when the father offered to pay thd plaintiffs fare.]

To which portion in brackets the defendant excepted.

[If you find from the evidence that the conductor demanded plaintiff’s fare in the sleeper, and that he persistently refused to pay after a reasonable time under all the circumstances tv comply with said demand; that Williams had not offered to pay his fare, and that Guy did not offer to go forward an-5 get his fare; that upon such refusal to pay, the conductor rang the bell signalling the engineer to stop the train for the purpose of putting plaintiff off, and that the conductor then went forward to get the brakeman to assist in putting plaintiff off, that plaintiff followed the conductor into the passenger coach, and that while the train was slacking its speed with a view to stopping in obedience to the ringing of the bell by the conductor, and the conductor or brakeman, or either of them,after the train slackened its speed took hold of plaintiff to put him off, and that concurrent with this taking hold of him plaintiff’s father offered to pay the fare, this offer did not entitle plaintiff to remain on the train. In such case the conductor was justified in removing plaintiff from the train even though the train had not come to a full stop at the time the plaintiff’s father offered to pay,and your verdict should he for the defendant provided you also find from the evidence that the conductor in putting him off used no more force or violence than was necessary to remove him. ]

To which portion in brackets the defendant excepted.

If you find in favor of plaintiff it will be necessary for you to determine the amount of damages he is entitled to freeover. ^

If you find in his favor, he would be entitled to recover such damages as will compensate and make him whole, and in determining the amount you may consider the trouble and inconvenience, if any, plaintiff was put to in traveling to a place of shelter in consequence of such expulsion from the train; physical pain and suffering, if any; the time and place of expulsion; the injurious effects if any, upon the plaintiff’s health; loss of time, if any, caused by said expulsion, and injury to plaintiff’s feelings, caused by a public expulsion from said train.

[Plaintiff charges in his petition that defendant’s servants acted maliciously in ejecting him from said train. If you find from a preponderance of the evidence that the conductor in ejecting plaintiff or causing him to be ejected from said train was actuated by malice or vindictiveness, or caused him to be ejected in a wanton and cruel manner with an intent to injure, insult, or humiliate him, then you may in your estimate of damages allow reasonable fees of counsel employed by paintiff in the prosecution of this action, and you may in such case, though you are not bound to, allow damages by way of punishment — known as punitive damages.]

To which portion in brackets the defendant excepted.

Bear in mind in calling your attention to the charge made in the petition by the plaintiff that defendant’s servants maliciously assaulted and beat him and ejected him from the train, I am not intimating in any way that the evidence warrants the allowance of counsel fees or damages by way of punishment; but lam only stating the law as to damages in case you find from a preponderance of the evidence that the act of the conductor in ejecting plaintiff was malicious, vindictive, or done with intent to injure, insult, or humiliate plaintiff.

In case you find the ejection was lawful, but find from a preponderance of the evidence that the conductor and brakeman or the brakeman alone used more force than was necessary to effect the plaintiff’s expulsion from said train, then the damages plaintiff would be entitled to recover would be such as were caused by the force used in excess of the necessary force to effect plaintiff’s expulsion from said train, but would not include injuries caused by the expulsion, because if the expulsion from the train was lawful, then no damages could he recovered for injuries received which directly and naturally followed from such expulsion.

The fact that plaintiff claims in his petition the sum of one thousand dollars does not fix the amount of recovery.

While your verdict, in case you find for plaintiff, cannot exceed one thouand dollars, it may be in such less amount to-which under all the evidence in the ease you find him fairly and justly entitled.

T. E. Scroggy, for Plaintiff.

Charles Darlington, for Defendant.

Defendant requested the court to charge the jury as follws:

“i. If you shoud find from.the evidence that the conductor when he went into the sleeper demanded a ticket or cash fare from the plaintiff, Guy, who then refused either to produce a ticket or pay his fare, and if you further find from the evidence that Williams made no offer to pay Guy’s fare, and that the conductor and Guy then went forward into the passenger coach, and that after the train left the siding at Enon Crossing, and while upon the main track the conductor pulled the bell cord to stop the train and then proceeded to eject Guy, using no more force or violence than was necessary to accomplish the purpose, then the fact that Guy’s father when the conductor and brakeman, or brakeman alone, took hold of Guy to eject him, offered to pay his fare, did not'entitle the plaintiff to the right to be carried to his destination upon that train, and in this event your verdict will be for the company, even though the train may not have come to a stop when the father offered to pay his son’s fare.”

Which request the court declined to give to which refusal the defendant excepted.

“2. The law implies that when a person enters the train of a company for the purpose of being conveyed from one point to another upon the line of its road, he will upon the demand of-the conductor pay his fare for the distance to be traveled, and if he refuses to do so he forfeits his right to be carried as a passenger, and the company may treat him as a trespasser.
If therefore you should ñnd from the evidence that the conductor demanded the fare of the plaintiff, Guy, while in the sleeper, and that Guy had no ticket and was unable to pay his fare, he thereby forfeited his right to be carried as a passenger, and his proposition to the conductor to go forward to the passenger coach and obtain the money from his father, if you find from the evidence that he made such a proposition, did not reinvest him with the rights of a passenger, nor did the subsequent offer of Williams while in the sleeper to pay the fare of Guy, if you should find that such an offer was made by Williams, have the effect to re-invest Guy with the rights of a passenger, and it was the right of the conductor to eject the plaintiff, Guy, from the train at an usual stopping place, or at a point other than a station or usual stopping1 place, provided care was taken not to expose him to serious injury or danger, and no more force or violence was used in ejecting him from the train than was necessary for that purpose; and if you And from the evidence that no more force or violence was used in the ejection of Guy than was necessary to accomplish. his removal then your verdic will be for the company even though yo shoud find from the evidence that whe the conductor and brakeman, or the brakeman alone took hold of the plaintiff to eject him from the passenger coach the plaintiff’s father offered to pay his fare.”

Which request the court declined to give and to which refusal the defendant excepted.

“3. If you And from the evidence that the conductor demanded Guy’s fare in the sleeper, and that he refused to pay, and that Williams did not offer to pay his fare, and that Guy did not offer to go forward and get his fare, and that upon Guy’s refusal to pay the conductor pulled the signal cord to stop the train, in order to put Guy off, and that the conductor then went forward to get the brakeman to assist in putting Guy off, and that Guy followed the conductor into the passenger coach and that whi'e the train was slackening its speed with a view to stopping in obedience to the pulling of the signal cord by the conductor, and the conductor and brakeman, or either of them, after the train slackened its speed took hold of Guy to put him off, and that concurrently with this taking hold of him Guy’s father offered to pay the fare--this offer did not entitle Guy to remain on the train. And the con ■ ductor was justiAed in removing Guy from the train, even though the train had not come to a full stop at the time Guy’s father offered to pay, and your verdict will be for the company in this event provided you And that the conductor in putting him off used no more force than was necessary to remove him.”

Which request the court declined to give, to which refusal the defendant excepted.

Verdict for plaintiff. $633.80.

Motion for new trial overruled and judgment rendered for amount affirmed by circuit couit upon plaintiffs entering a remittitur of so much of said judgment as exceeded S300.00.  