
    Eddy & Cross, Receivers, v. Will Elliott. Same v. A. S. Mathews.
    (Nos. 3491 and 3492.)
    Appeal from Hopkins County.
    Peteet & Crosby, counsel for appellants.
    No counsel appeared for appellee.
   Opinion by

White, P. J.

§ 173. Common carriers; passengers; facts held not to authorize judgment for damages for ejection of. These two appeals present the same cause of action, and the same facts and questions of law are involved in each case. The appellees, each, sued the railway company for damages, because they had been illegally and wrongfully ejected from the cars of said company, upon which they claimed to be passengers. They claimed $50 damages for being ejected from the cars, and $900 damages for wounded feelings. Judgment was rendered in each case for $50 against the railroad. The facts, in brief, are that these parties got on the train in the day-time to ride a distance of thirteen miles between stations. They did not purchase or attempt to buy tickets, though the depot was open for sale of tickets a half hour before the train should start from that station. They knew they would have to pay on the train, and pay at the rate of four cents a mile. In a few moments after starting, the conductor came around to take up tickets, or collect fare. When he reached these parties, Elliott handed him $1 to pay both fares. The conductor understood him to say he desired to pay three fares, and told him they came to $1.65; he (the conductor) repeating more than once that three fares came to $1.65. These parties made no attempt to correct the mistake of the conductor, nor did they tender him $1.10, which was the fare for the two at four cents per mile. When the conductor came back and demanded the sixty-five cents, they did not explain his mistake, nor offer to pay him the ten cents they still owed for the two. He told them' they would have to pay or get off. They said they would get off. He stopped the cars, and they got off voluntarily, and in a smooth, level place near a good public road, and within half a mile of the depot they started from. They testify themselves that the conductor treated them in a most kind and gentlemanly manner, and used no violence of any kind, or rough language of any kind. These are the plain, simple facts of the case. Upon these facts, the plaintiffs had no cause of action against the railroad, and the judgments in both cases are reversed, because they are wholly without evidence to support them.

November 29, 1890.

Eeversed and remanded.  