Opinion
8 Div. 174.
June 12, 1919. Rehearing Denied October 23, 1919.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Eyster Eyster, of Albany, for appellant.
S. A. Lynne, of Decatur, for appellee.
The count was not subject to demurrer directed thereto. The question is, Had the plaintiff the right to ride upon the train without paying the extra fare required by defendant, if its conductor had informed or arranged with plaintiff that the latter would have a reasonable opportunity to purchase a ticket at Falkville, from that point to Wilhite, and defendant failed to give or provide him such an opportunity?
Under the law the conductor in charge of the train, in the discharge of the duties of his employment, is vested with the power of the defendant company in the collection of fares from passengers, and to that end is its vice principal, and may subject said company to liability for his acts while he is so acting. Republic I. S. Co. v. Self, 192 Ala. 403, 407, 68 So. 328, L.R.A. 1915F, 516; A. G. S. R. R. Co. v. Baldwin, 113 Tenn. 409, 82 S.W. 487, 67 L.R.A. 340, 3 Ann. Cas. 916. Railroad conductors may make reasonable arrangement as to passengers transported under their direction, and may inform passengers what will be required of them, and bind the company by such information so given, in the discharge of the duties of their employment. Wright v. Glens Falls, etc., R. R. Co., 24 App. Div. 617, 618, 48 N.Y. Supp. 1026; Chicago, etc., R. R. Co. v. Burns (Tex.Civ.App.) 104 S.W. 1081, 1083; Dwinelle v. N.Y. C. H. R. R. Co., 120 N.Y. 117, 127, 24 N.E. 319, 8 L.R.A. 224, 17 Am. St. Rep. 611.
Plaintiff, testifying, said that he had boarded the defendant's train going south to Falkville, with a ticket he had purchased thereto and which he surrendered to the conductor; and, before arriving at the point of destination, he informed that official that he had decided to go to Wilhite, a point on said road beyond Falkville, and that the conductor directed him to "get a ticket at Falkville"; that on arrival at this place he went to the ticket office (the place provided for the sale of tickets to prospective passengers), but did not find an agent therein; that he looked for the agent without success; that the train started before he was given an opportunity to purchase a ticket, and he returned to the train, and informed the conductor of the absence of the agent and of his inability to purchase a ticket; that he offered to pay the regular cash fare, which he gave the conductor, and that said official, after taking the money, informed plaintiff that he would have to pay the increased cash or "excess fare," and, failing to do so, was put off the train. Witness testified on cross-examination, "I had 5 cents more than the 15 cents" given the conductor, who demanded as the excess cash fare 25 cents, which was more than the witness possessed. Witness further admitted that he did not tell the conductor that he had not the 25 cents demanded as the cash fare, but stated that he "did not get on the train and buy a ticket to Falkville for the purpose of trying to go to Wilhite without paying the excess fare, so as to get a suit against the company"; that the price of a ticket from Falkville to Wilhite was 10 cents.
Defendant's conductor in charge of said train testified that plaintiff had a ticket, and that when he "got to Falkville he got off and ran over to the depot there, and the train was there about a minute"; that, returning, he "jumped on the front end of the smoking car," and asked the plaintiff where he was going, and, after his reply, "told him the fare was a quarter, and he said he would pay 10 cents, but not a quarter"; and witness said he "would have to let him get off, and he did, and that was all. * * *"
Defendant insists that plaintiff made an admission that he knew about the cash fare, and did not tell the conductor whether he had other money or not. This is immaterial to the question of liability vel non for ejecting the plaintiff. The insistence is further made that the plaintiff was seeking a claim for damages. The record does not sustain this, but shows plaintiff to have been a bona fide passenger to the points in question.
It was not necessary that the fare be paid to establish the relation of carrier and passenger, for if the plaintiff had entered the car in good faith, with the implied invitation or consent of the company's agent, to take passage and with the intention of paying, the relationship is established. B. R. L. P. Co. v. Bynum, 139 Ala. 389, 395, 36 So. 736; N. B. R. R. Co. v. Liddicoat, 99 Ala. 545, 549, 13 So. 18. In L. N. R. R. Co. v. Hine, 121 Ala. 234, 237, 238, 25 So. 857, 859, the court said:
"It does not appear from the complaint, however, that there was any rule of the defendant which required absolutely one who has actually obtained such permission to himself exhibit to the conductor the written evidence of such permission. In the absence of notice to the plaintiff of such absolute requirement, he had a right to assume that the defendant's ticket and telegraphing agent knew his duties and would perform them. If, therefore, as appears from the complaint, the plaintiff was induced to board the train and begin the journey disarmed of the written permit by the conduct of the defendant's agent and in reliance upon his advice and his undertaking to give the permit to the conductor, the defendant could not rightfully eject him from the train for failure to exhibit a written permit to the conductor. The carrier cannot shield itself from the consequences of misconduct or mistake on the part of one of its agents, acting within the scope of his duties, which has naturally betrayed another of its agents into the final act of injury to the passenger."
A condition precedent to the enforcement of a regulation exacting extra charges in case of failure to purchase a ticket is that the carrier afford the passenger a reasonable opportunity to purchase a ticket; not so affording, such passenger is entitled to have transportation on payment (or tender for acceptance to the conductor in charge of the train) of the regular fare for his transportation. Kennedy v. B. R., L. P. Co., 138 Ala. 225, 230, 35 So. 108; Evans v. M. C. R. R. Co., 56 Ala. 246, 28 Am. Rep. 771; Kozminsky v. Oregon S. L. R. R. Co., 36 Utah, 454, 104 P. 570, 24 L.R.A. (N.S.) notes 758-761.
If the issue was found for plaintiff, he was entitled to recover the proximately resulting damages for his wrongful ejection from the car and for the inconvenience, humiliation, and indignity to which he was put, suffered, or caused thereby. Such damages as humiliation and indignity, if suffered by him from his ejection from the car, are said to be elements of actual damages arising "from a sense of injury and outraged rights engendered by the ejection alone, without regard to the manner in which it was effected, and though done only through mistake." L. N. R. R. Co. v. Hine, supra, 121 Ala. 238, 25 So. 860; Florence Hotel Co. v. Bumpas, 194 Ala. 69, 73, 69 So. 566, Ann. Cas. 1918E, 252; L. N. R. R. Co. v. Fletcher, 194 Ala. 257, 260, 69 So. 634; Clancy v. Barker, 131 Fed. 161, 66 C.C.A. 469, 69 L.R.A. 653. The plaintiff testified that his ejection from the train occurred in the presence of other passengers late in the afternoon, in cold and rainy weather, and he had to walk three miles, over muddy roads, from which he contracted a cold, from which he suffered about three weeks. The judgment was not excessive, and the motion for a new trial was properly overruled.
Assignments of error 11 and 12 are not well taken. The pleas are defective in not averring facts showing that a reasonable opportunity had been given plaintiff as a passenger on the train by defendant's agents on duty, on the arrival of the train at Falkville, and before its departure, to purchase a ticket to Wilhite.
The ruling of the trial court in sustaining plaintiff's objection to the question, "Look at the rule of train fare, and [I] will ask you if that has been in force as to train fares ever since 1907," was free from error. The written or printed rule should have been produced or its absence accounted for. L. N. R. R. Co. v. Orr, 94 Ala. 602, 10 So. 167; L. N. R. R. Co. v. Boggs, 199 Ala. 225, 74 So. 337.
Under the evidence, a jury question was presented; and defendant's requested general affirmative charge was properly refused.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.