
    Nashvlle Street Railway v. Griffin.
    (.Nashville.
    January 27, 1900.)
    1. Stseet Railroads. Regulation requiring passengers to enter ca/rs within transfer station.
    
    A regulation of a street railway company that requires persons desiring to take its cars at a transfer station to enter the cars within, and not beyond, the prescribed limits of the station, and for their failure to do so declaring their right of transportation forfeited except upon payment of an additional fare, is reasonable, and, in its proper and reasonable enforcement, will justify the ejection of a passenger who has entered the cars in violation of it and refuses to pay the required additional fare. (Post, pp. 88, 89.)
    
    2. Same. Enforcement of valid regulation unreasonably and oppressively.
    
    It is an unreasonable, arbitrary, and oppressive enforcement of a proper and reasonable regulation requiring persons to enter street cars within a transfer station, or for failure to do so to pay an additional fare, for the company’s agents to eject one who, to their knowledge, had paid regular fare, because he had entered a car, in which there was abundant room, while it was standing a few feet beyond the station line, upon his refusal to pay an additional fare; and for such ejection the company is liable in damages to the party ejected. (Post, pp. 89-91.)
    
    Case cited: Turner v. Railroad, 100 Tenn., 213.
    3. Same. Right to eject passenger refusing to pay fatre not waived, when.
    
    By starting its car before demanding fare, a street railway company does not waive its right to eject a passenger who unlawfully refuses to. pay fare, especially when the demand of fare was made simultaneously with starting car, and the circumstances were such as to justify the expectation that fare would be paid. (Post, pp. 87, 88.)
    
    
      4. Damages. Vindictive, allowable.
    
    For the unwarranted, and arbitrary ejection oi a passenger from a street car in a roug'h, rude, insulting, and violent manner, vindictive damages are allowable; and although the injuries inflicted are not very serious, a verdict of $2,500 is not excessive in such a ease. (Post, pp. 91, 92.)
    
    FROM DAVIDSON.
    Appeal in error from Circuit Court of Davidson County. J. W. Bonnee, J.
    B. F. Jace:son for Street Eailway.
    1VL B. Howell and Stores & Stores for Griffin.
   Wilres, J.

This is an action for damages for personal injuries sustained by the plaintiff as the result of being ejected from a car of tbe Nashville Street Eailway. There was a trial before a jury and verdict and judgment for $2,500, and the street car company has appealed and assigned errors.

The plaintiff entered the transfer station of the road through a turnstile on College street, paying the usual 5 cents fare, to take a car for South High street, where he lived. He entered a High street car.. There is a conflict of evidence as to the point where this was done.

Plaintiff insists that be entered tbe car wben it was in tbe transfer station while tbe road insists that he did not enter it until after it pulled out from tbe station proper into an open space between it and tbe shops. Both contentions' are quite strongly supported by testimony. Tbe contention of tbe road is, that be ran through tbe transfer station room proper and caught up with tbe car in tbe open space, where it bad stopped temporarily for tbe conductor, who bad stepped into a side room after water. It is. also insisted that wben be ran out of tbe station bouse, the watchman notified him that if he boarded the car after it bad left tbe station be would have to pay an additional fare. The conductor was notified by the watchman that the boy had run out from the transfer station and entered tKe car on the outside, and to collect another fare from him. The check agent, whose business it was to register .the persons who entered the cars in the station house and to punch a ticket so as to show tbe number of persons who bad so entered, had punched a ticket for three persons, and wben tbe conductor returned and came to bis car, be saw tbe ticket punched for only three persons while four were • on the carl He rang tbe bell and started bis car, and at once went to tbe plaintiff and demanded his fare. Plaintiff stated that be had already paid and would not pay again, wben the conductor told him be would have to pay, or get off, explaining to him tbe rule of the company that persons were not allowed to enter the ears beyond the line of the station house without paying fare, although they had already paid a fare in order to enter the station, but that he could return to the station house and take the next car without paying an additional fare. The passenger declined to pay any additional fare, or to leave the car and return to the station, and the conductor, with the assistance of the motorman, put him off the car. The plaintiff resisted, and after he was put off got on the car again, which in the meantime had moved up a short distance, and had reached the car shed, but had not left the inclosure or premises of the company, and • had not reached the street. At this point he was again put off by the conductor, and several other company employees, who came to his assistance. There is some conflict as to- how the ejection was accomplished. All parties agree that it was by force and over a stubborn resistance. The plaintiff insists that he was treated in a rough, rude manner, and with violence and force, and after he had been removed from the car, was pushed violently into a pit four feet deep at that point, which was used by the company ás >a place where the employees could go under the cars and wipe them off and arrange the electrical appliances. He insists that in consequence of being thrown into this pit, and as a result of the rough, and violent usage, be was seriously and permanently injured. Tbe road, while conceding tbe ejection by force, contends tbat only so much was used as was necessary under tbe circumstances, and tbat tbe plaintiff was not t-brown or pushed into tbe pit, but fell into it himself in bis violent efforts to resist tbe ejection and get back upon tbe car. Tbe road also insists that be was not seriously injured, but pretended to be so. Both these theories are quite strongly supported by testimony, and were submitted to tbe jury and urged upon its consideration by able counsel.

There are virtually but two errors assigned — one tbat tbe verdict of $2,500 is excessive, and tbe other tbat tbe Court wrongly instructed tbe jury and refused to give in charge certain propositions which were requested. Tbe propositions criticized are, in substance, tbat if tbe plaintiff boarded tbe car after it left tbe transfer station, and if tbe conductor, when be boarded bis car between tbe transfer station and car shed, rang tbe motorman to proceed before approaching tbe plaintiff for bis fare, this would not constitute a waiver of tbe rule and regulation requiring a passenger to pay an extra fare if be got on tbe car after it left tbe station, for tbe conductor would have tbe right to assume tbat tbe plaintiff would observe tbe rule in this respect when bis fare was applied for. In this connection be was also asked to charge tbat if tbe jury found from tbe evidence tbat defendant road bad a rule requiring passengers to board tbe cars in tbe transfer station proper, and if they failed to do so and should enter tbe car after it left tbe station, tbev would either have to pay another fare or leave the car and return to the staüon and take the next car, such a rule would be reasonable, and should be observed by the passenger. This Avas declined by the Court as unnecessary and not applicable to the facts in the case. It Avill thus be seen that upon this feature of the case the Court declined to pass upon the reasonableness or unreasonableness of the rule, because, in the opinion of the trial Judge, the defendant, by starting its car on its journey with knowledge of plaintiff's method of boarding it, and with the further knowledge that as a fact he had paid his fare, waived its right to enforce the rule against him, and accepted him as a passenger. In other words, it is said that this charge, is error, because the conductor might properly start his car upon the assumption that when he approached the passenger for his fare, he would pay it and that he would conform to the rules of the company and pay another fare, as he had been warned he would have to do while on his way out of the transfer station to enter the car. The insistence is that the Court should have charged the jury that the rule was a reasonable one, and must be complied with, and if not complied with the plaintiff had no right to ride, and might be ejected. It is also said that tbe trial Judge, to some extent, invaded tbe province of tbe jury when be stated that tbe starting of tbe car was a waiver of tbe rule and an acceptance of tbe passenger. -As to tbe latter contention it is evident that the charge could only apply upon tbe theory advanced by the road itself, that tbe passenger entered the car after it left tbe station, because if be entered before it left, there could be no question of his acceptance and right to ride. In this view of the case, tbe assumption of tbe Court, if error at all, was not injurious to defendant, as it was based upon the theory of tbe road that tbe entry was made outside tbe station. It is also said that the signaling of tbe car to move and tbe application for tbe fare were virtually made at the same moment and before tbe car bad progressed more than a few feet and before it left the station, and that mere starting of tbe car should not, under these circumstances, be held to imply the acceptance of tbe passenger as a waiver of tbe rule.

We are of opinion the criticism of tbe appellant as to tbe charge of tbe Court and tbe refusal to charge tbe special requests, are well taken. We are of opinion that it was error to charge that tbe mere starting of tbe ear upon its journey with tbe knowledge of tbe method of plaintiff in boarding it, and that be had paid bis fare, was an acceptance of the plaintiff as a passenger and a waiver of- tbe rule as to him. In tbe first place, the starting of tbe car and demanding tbe fare was so nearly simultaneous that tbe car progressed only a short distance before tbe fare was demanded and refused and tbe. car was stopped for plaintiff’s ejection.

In the next place, tbe conductor may have very well assumed that plaintiff would pay tbe fare, as be bad been notified be would have to do, and acting on this assumption started tbe car in order that other passengers might not be delayed. If the plaintiff had been the only person on tbe car, there would have been more strength in tbe position taken. "But there were other persons on tbe car whose rights and convenience were also to be considered and protected, and it was not improper that the conductor should start the car and trust to arranging with plaintiff Ms right of passage without detaining other passengers.

We are also of opinion that the Court erred in not charging the special request to the effect that the rule of the company requiring passengers to enter the cars while in the station house was a reasonable one. It is apparent that it was a rule which greatly facilitated the transfer of passengers and dispatch of cars. It did away entirely with the necessity of passengers carrying tickets, and made their right of passage depend entirely upon whether they had entered the cars in the station house. Whether entering by another car, or line, or through, the turnstile, the passenger was subjected to no further trouble than simply getting upon a car upon the line he intended to travel. And so restricting the right to enter the cars to those only who had entered the station, and from it entered the cars, relieved the road from the trouble and annoyance of tickets and stoppage outside of the station house, and facilitated the running of the cars and transfer of passengers. We think, therefore, the Court should have charged this proposition embodied in the special request. But while this is true, the Court should have said, in addition, that although the rule may be reasonable in itself, it must also be enforced in .a reasonable manner, so as to carry out the objects and purposes of the rule. Turner v. Railroad, 16 Pickle, 213.

Now, we have, upon the defendant’s own theory, this state of facts. The plaintiff, a mere boy 19 years of age, had entered the station through the turnstile, paying the regular fare which entitled him to ride on any of the lines converging in that station. When he entered he saw that the High street car, which he intended to ride upon, had started out of the station house proper, but had stopped immediately beyond the station line, and only a few feet from it, and within the company’s inclosure. He knew that unless he entered that car he would be required to wait twenty minutes, and seeing it standing waiting he went beyond the station house proper a few feet and entered it. Now, conceding that the rule was a reasonable one, was it a resonable enforcement of it to expel this plaintiff from the cars when it was known to the watchman and conductor that he had paid his fare, and entered the station house for the purpose of taking this very car. It seems that there can be only one answer, and it is that the arbitrary enforcement of the rule' to the extent of ejecting the passenger from the car and compelling him, after he had entered one car .in which there was plenty of room, to leave it and return to the station and wait for another car was an unreasonable and arbitrary enforcement of the rule. Now, if the car -had not stopped and afforded him the opportunity to enter it, he could not have required it to do so to enable him to board it. Ent all the purposes of the rule had been met and subserved and the employees of the company knew it. To arbitrarily enforce the rule in such case could subserve no good purpose, but would make it an instrument of oppression by the mode of its enforcement. We are of opinion, therefore, that while the errors complained of exist, they are immaterial under the facts of this case, and that the case should turn upon the manner in which it was attempted unreasonably to apply the rule under these special circumstances, which, under ordinary circumstances, was reasonable and proper. Tbe error of tbe trial Judge is not, therefore, reversible.

Tbe only other assignment of errors it is material to mention is that tbe verdict and judgment is excessive in amount. Tbe charge of tbe Court as to tbe measure of compensatory damages is not complained of. Tbe trial Judge said upon tbe subject of punitive damages:

“If you find for the plaintiff and also find that tbe conduct of defendant’s servants was wanton, reckless or malicious, you would have tbe right besides damages compensatory, to award vindictive or punitive damages, or what' is commonly known as 'smart money.’ ” We do not understand that this charge is excepted to as incorrect, but tbe contention is that it is not a case for punitive damages, and that tbe amount given is far in excess of compensation for tbe actual injuries received. Tbe extent of tbe injuries received is a matter of much controversy in tbe evidence. It appears that the plaintiff fell into a pit some four feet deep. It appears that his hip was injured by the fall, and the passage of blood from him indicated unmistakably internal injuries. Tie is shown to have been somewhat feeble and subject -to fits. He was taken with pneumonia a short time afterward and came near dying, and there is testimony that tbe severity of the attack was to some extent due to tbe injuries he bad received, and tbe condition of his system in consequence of them. But we are of opinion that under the pleadings, facts and charges in this case the jury was warranted in giving punitive damages. We look upon the ejection of the plaintiff under the circumstances as entirely unwarranted and arbitrary. It was done, according to the proof, in a rough, rude, insulting, and violent manner. There is testimony tending to show that several employees combined and co-operated to put him off; that it was done at a place which was not safe, and some of the witnesses state, in substance, that he was pushed or thrown over into the pit. As he was at best but a weak man, and capable of only limited resistance, and had opposed to him several men, it would seem that he could have been held and handled in a way that would not have injured him or subjected him to such indignities as he suffered, notwithstanding his resistance.

It' being a proper case, in our opinion, for punitive damages, we are not disposed to disturb the verdict, and- the judgment of the Court below is affirmed with costs.  