
    THE BALTIMORE, CHESAPEAKE AND ATLANTIC RAILWAY COMPANY vs. WILLIAM A. KIRBY.
    
      Expulsion of Passenger from Train — Evidence—Punitive Damages.
    
    In an action to recover damages for unlawful expulsion from a railway train, where one question is whether the plaintiff’s ticket entitled him to travel on that train, evidence as to the reason why the right to travel thereon had been given to holders of tickets like the plaintiff’s is immaterial.
    Plaintiff’s evidence in an action for ejection from a railroad train was to the effect that after he had been put off the car, and while he was holding to the railing of the steps, as the train started again, the conductor kicked him in the breast and so caused him to fall violently to the ground. Held, that this evidence was sufficient, if believed by the jury, to authorize them to award punitive damages.
    Appeal from the Circuit Court for Dorchester County (Holland and Lloyd, JJ.) There was a judgment in favor of the plaintiff for $3,000.
    The cause was argued before McSherry, C. J., Briscoe, Boyd, Schmucker and Jones, JJ.
    
      William H. Adkins (with whom were Phillips L. Golds-borough and Robert P. Graham on the brief), for the appellant.
    
      J. C. Midlikin and Joseph B. Seth, for the appellee.
   McSherry, C. J.,

delivered the opinion of the Court.

This case is before us for the second time. The first appeal is reported in 88 Md. 409. There are but two questions brought up by the present record. One of these concerns the admissibility of evidence; and the other relates to the granting of the second prayer of the plaintiff. This second prayer is identical in terms with the fourth prayer which was granted on the former trial and which was not then objected to by the defendant. There is no complaint as to the structure of the prayer, nor as to the legal principle which it embodies. The sole ground upon which it is insisted that it should have been rejected is, that there was no evidence to support one of its hypotheses ; and that hypothesis is the one upon which the claim for punitive damages is founded.

The suit was brought to recover -damages for the forcible ejection of the plaintiff from an express train of the defendant company by the servants of the defendant. A detailed statement of the circumstances which preceded and culminated in the expulsion of the plaintiff need not be given, because neither of the questions which we have to pass on requires it. And these questions do not require it because, as respects the prayer, the theory upon which it was constructed admits that the defendant’s servants had the right to eject the plaintiff; and because, as respects the evidence objected to, it throws light only on the plaintiff’s first prayer, the accuracy of which was conceded by the defendant. Indeed, we ought to say that there is comparatively little necessity to discuss the prayer to which objection is made, because precisely the same measure of damages which it prescribed is contained in the plaintiff’s third prayer, which was also ■ conceded by the defendant to be right. But we will briefly consider both questions.

An excursion train was run from Claiborne to Ocean City, on the twenty-fifth day of August, eighteen hundred and ninety-seven. Persons living in Trappe and Oxford were given the privilege to return from Ocean City on the express train instead of by the excursion train. On the day named the plaintiff bought an excursion ticket at Easton and went to Ocean City. In the evening he took the express train to return, and this was the train from which he was ejected. On the first trial of the case it was conceded that he had a right to return on this express train. On the second trial the defendant changed front and denied that the plaintiff was authorized to ride on the express train. It became necessary, then, for the plaintiff to show that he was rightfully on the train from which he was expelled, and he accordingly proved that public notice by hand-bills had been given to the effect that excursionists from Oxford and Trappe could return on the express which left Ocean City ten minutes ahead of the excursion train. That he lived at Trappe and had seen the notice before he purchased his ticket at Easton. Trappe is not on the line of the defendant’s road, but is reached by the Delaware and Chesapeake Railroad, which intersects the defendant’s road at Easton. As the express train returning from Ocean City reached Easton in advance of the time when the train on the Delaware and Chesapeake passed through Easton to Trappe and Oxford; and as the excursion train did not reach Easton until after the Delaware and Chesapeake train had gone, persons from Trappe and Oxford who went upon the excursion would not have been able to reach home by rail unless they had been allowed to return from Ocean City by the express. But it appeared the plaintiff had not gone from Trappe to Easton by rail, but had driven there in his carriage. The defendant thereupon moved the trial Court to strike out the evidence which showed that persons from Trappe and Oxford were entitled to return from Ocean City on the express train, and based the motion on the ground that the plaintiff had driven to Easton and had not gone there by the Delaware and Chesapeake Railroad. The motion was overruled and to this action the first exception was taken.

As an unqualified privilege had been given to excursionists living in Trappe and Oxford to return from Ocean City on the express train, the reason for granting the privilege was wholly immaterial. Whatever the reason may have been, the fact was held out to the public that persons living in Trappe and Oxford, and who might go on that excursion, could return on the express train, and no reference was made in the advertised notice to the mode by which they might reach Easton from Trappe or Oxford. Confessedly the plaintiff fell within the class of people named in the public notice, for he was a resident of Trappe, and it made no difference that he drove to Easton in his carriage instead of going there by a train on the Delaware and Chesapeake Railroad. Had the public notice advised the excursionists from Trappe and Oxford that only such of them as held tickets over the Delaware and Chesapeake Road could return on the express train a different question would have been presented. The evidence which the Court refused to strike out tended to show that the plaintiff was rightfully on the express train, and there was no error committed in permitting the jury to consider it.

The only objection to the granting of the second player is that there was no evidence to justify the allowance of punitive damages. Even if we were satisfied that there was no evidence legally sufficient to support a verdict awarding punitive damages we would'find a great, if not an insuperable, difficulty in reversing the judgment, because the defendant, by conceding the plaintiff’s third prayer, has admitted that there was sufficient evidence before the juiy to show that the plaintiff Was treated with unnecessary and reckless violence and indignity,” and this would be sufficient to warrant the infliction of such damages. In conceding a prayer there is involved, of necessity, a concession that there is sufficient evidence to support the hypotheses of the prayer; and as the third prayer left it to the jury to find whether the plaintiff had been treated with unnecessary and reckless violence and indignity, it must be assumed that the defendant conceded there was evidence which tended to show that fact. How, then, after such a concession can it object to the granting of another prayer when the sole ground of 'objection to the latter is that there was no evidence to prove the véry thing which the concession admits had been proved ? But,' passing this by, what is the doctrine on the subject of punitive damages in such a case as this ? In the recent case of Smith v. P. W. & B. R. R. Co., 87 Md. 48, it was considered and discussed and we need do no more than say that whenever the injury complained of has been inflicted maliciously or wantonly and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. The malice spoken of implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations. This is the rule. Now, there is a conflict of testimony in the record. If the defendant’s witnesses were believed by the jury then no exemplary damages ought to have been given. If, on the other hand, the plaintiff’s witnesses were credited, then there was evidence which showed such contumely, force and indignity as would justify the jury in going beyond the limit of mere compensatory damages. Two witnesses testified that after the plaintiff had been forcibly put off the car in the open country the conductor whilst standing on the car-steps kicked him in the breast. The car was in motion at the time, having been started by the direction of the Conductor. The plaintiff, who was holding to the steps-railing, fell to the ground and the train passed on. Kicking a man in the breast whilst he is holding to a moving car and thereby throwing him violently to the ground can scarcely be described as other than “criminal indifference to civil obligations.” If the conductor was right in putting the plaintiff off he was authorized to use all necessary force in a proper way to do what he had the right to do ; but that authority does not carry with it a liberty to treat the offending individual with the indignity and contumely which are involved in kicking a person loose from a moving train. There was evidence tending to show that this had been done, and it was for the jury to say whether that evidence was true. There was, consequently, evidence which supported the hypothesis of the prayer and the objection founded on the want of such evidence cannot be sustained.

(Decided June 14th, 1900.)

The , rulings excepted to being right the judgment appealed against will be affirmed.

Judgment affirmed with costs above and below.  