Opinion
(February Term, 1893.)
Action for Damages — Negligence — Intoxication of Passenger — Nonpayment of Fare — Conductor of Train.
1. The conductor of a railroad train is authorized to expel without using unnecessary force one who refuses to pay regular fare, at any point where he may safely get off, provided it be (as required by the statute, section 1962 of The Code) "at any usual stopping place or near any dwelling house, as the conductor shall elect, on stopping the train"; and provided further that the ejected person is not willfully and wantonly exposed to danger to life or limb.
2. A conductor requiring an intoxicated man to leave the train for nonpayment of fare does not render the carrier liable for the death of the man from exposure, where the conductor did not have reasonable ground to believe that the man was unable to find his way or walk to the nearest house or to the railroad station, or even to his own father's house, which was not far away.
3. A somewhat intoxicated passenger who gets off safely without assistance, when told that he must pay his fare or leave the train, and whom the conductor has seen a few minutes before in an eating house demanding food and acting somewhat boisterously, may be reasonably supposed to be capable of reaching a place of safety where he is left in the evening, when it is neither raining nor freezing, within two hundred yards from a dwelling house, and not far from the railroad station.
4. A conductor is not bound to act upon the volunteered opinion of a passenger as to the physical or mental state of a drunken man who has been expelled from the train where he has no reasonable ground to believe that the man is unable to find a place where he will be safe.
ACTION tried before Bynum, J., and a jury, at Special Term, 1892, of LINCOLN, wherein plaintiff, as administrator of Robert Murdock, sought to recover of the defendant damages for the negligent expulsion of his intestate from defendant's train on an inclement (710) night while he was intoxicated, thereby exposing him to the injuries resulting in his death.
Jones Tillett and D. W. Robinson for plaintiff.
P. D. Walker for defendant. (715)
The plaintiff's intestate got upon the defendant's passenger train at Iron Station and, failing or refusing to produce a ticket or pay fare on demand of the conductor, was ejected a little more than a half-mile from that place and within two hundred yards of a dwelling house. There was testimony tending to show that the intestate appeared to be drunk at the station while the passengers were taking supper there, and had come as a passenger from Stanley to Iron Station (about twenty-one miles) on the same train, having purchased a ticket from one station to the other. The conductor testified that he (716) considered him neither sober nor drunk; and a witness for the plaintiff corroborated his statement that the intestate when ordered to get off the train followed him to the platform and then stepped off without assistance from the brakeman, who held his lamp for him to see in alighting. The only direct evidence as to the nature of the ground where he was ejected was that of the conductor, who said that he went down an embankment about three feet high. He was found next morning frozen and in the water that had collected near the center of an embankment eight feet high, three fourths of a mile from the station.
Where there is no statute prescribing where or when recusant or disorderly passengers must be ejected, the officer in charge of trains, as a rule, is authorized to expel, without using unnecessary force, one who refuses to pay regular fare, at any point where he may safely get off. Pickens v. R. R., 104 N.C. 312; Clark v. R. R., 91 N.C. 506. The statute (The Code, sec. 1962) affirms this right, subject to the limitation that the expulsion must be either "at any usual stopping place or near any dwelling house, as the conductor shall elect, on stopping the train." It is admitted that the plaintiff's intestate was put off without using force, near a dwelling house, and not remote from a station. But, where the power expressly given by law is exercised in such a manner as to willfully and wantonly expose the ejected person to danger of life or limb, the company is still liable for injury or death resulting from the expulsion. Cases falling within this last exception to the general rule and not intended to be included under the statute, arise where the persons ejected are manifestly too infirm to travel or too much intoxicated to be trusted to find the way to the nearest house or station. 3 Wood R. R. Law, sec. 362; 2 Shearman Red. Neg., sec. 493; R. R. v. Right, 34 Am. Rep., 277.
(717) The question, therefore, which first confronts us is whether in any view of the testimony the conductor had reasonable ground to believe that the plaintiff's intestate was so greatly under the influence of liquor as to be unable to find his way or walk to the nearest house or to the station. He was put off the train on the night of 16 November, 1889. According to the testimony of Miller for plaintiff and that of the conductor it was not raining nor was it freezing at that early hour of the evening, though later in the night there was sleet, and the ground was frozen next morning. The conductor had heard intestate's demand for food at the supper house and had seen him supplied. He next saw that he had got on the train and found him awake and declaring that he had neither money nor ticket. When told that he must get off, the intestate arose, walked to the platform and got off without assistance. Under such circumstances was it the duty of the conductor to take him free of charge to the next station, lest he should drink more, or the intoxicants that he had already drunk should take effect and subsequently render him unable to travel? We think not.
It was but natural to infer that one who could find his way to the eating house and demand food and thence into the train again could follow a road hard-by when he was put off, and which it seems the conductor knew led to his father's house, only a short distance off. His boisterous behavior at the station, so far as it seems to have come under the observation of the conductor, clearly indicated that it might become necessary to expel him for disorderly conduct, but was not calculated to excite apprehension that he might prove physically unable to return to the station or reach a house in the immediate vicinity of the point where he got off. The statement of the conductor that he saw him land without assistance "safe upon the ground" being undisputed by any direct evidence, the conductor was warranted (718) in acting upon the supposition that he would seek and reach a place of safety. Had he shown symptoms of infirmity or of stupor in presence of the conductor, or had there been any dispute as to what the demeanor of the intestate had been in his presence, it might have been for the jury to determine whether the conductor had reason to believe he was physically or mentally incapacitated for traveling by reason of intoxication. Waiving the objection to the competency of the question propounded to Alderman by the witness Miller, just after the deceased was expelled, we think that the answer of the former, "Oh, no; he lives near here, and it is only a few hundred yards to the station," sufficiently shows the reasonableness of his course from his own standpoint. It would place a premium upon drunkenness and subject companies and passengers to needless delay and danger if officers in charge of trains were bound, in order to save the companies harmless, to act upon an off-hand opinion ventured by a passenger instead of their own well-founded view of the situation, and stop the train to hunt for or pick up an ejected trespasser. This is one of the thousands of terrible casualties due to the immoderate use of spirituous liquors. If there is a moral accountability at the door of any person other than the victim, or should be a legal liability elsewhere, we see no ground for saddling the responsibility upon a common carrier whose conveyances are so frequently resorted to by such boisterous and violent men to the annoyance of sober and orderly passengers. We are unwilling to lay down the principle that a conductor subjects his company to liability for refusing to act upon the volunteer opinion of any passenger as to the physical or mental state of a drunken man who has been expelled.
(719) We think that there was no evidence, competent or incompetent, that fairly raised the question whether the conductor had reasonable ground to believe that the intestate was too infirm by reason of intoxication to reach a place where he would be safe, and upon the answer to that inquiry the liability of the company depended. In the absence of any sufficient testimony to make the company liable for willful disregard of the intestate's danger on the part of Alderman, we think that the court below erred in submitting the case to the jury at all. In this view of the evidence it is unnecessary to mention particular prayers for instructions or exceptions arising from the refusal to give them.
In the most favorable aspect of the testimony for the plaintiff the conductor had notice that the deceased was drinking and disposed to be quarrelsome at the station, and saw that he was under the influence of liquor when he was expelled from the train; but there was no evidence of physical infirmity or mental incapacity such as to excite a reasonable apprehension that he would be unable to walk to a house or to his home. Alderman was not bound, because of what he did see and hear, to institute inquiry among the other passengers before ejecting the intestate, or to act upon their opinions given afterwards, when he had no reason to believe that the intoxication had deprived the intestate of the mental capacity to find his way or the physical power to follow it to a neighboring house or to the station. However much such accidents are to be deplored, justice and public policy alike forbid that the failure of the conductor in charge of a train to consult the fellow-passengers of a man who refuses to pay fare and appears to be somewhat intoxicated as to his ability to provide for his own safety, shall be declared negligence, such that a jury are at liberty to find it the proximate cause of injury or death befalling him after expulsion.
(720) For the reasons given we think there was error in submitting the question of defendant's negligence to the jury at all upon the evidence, and the defendant is therefore entitled to a
NEW TRIAL.
Cited: Hansley v. R. R., 115 N.C. 612; Tankard v. R. R., 117 N.C. 562; Lee v. R. R., 176 N.C. 97.
(721)