# New York Company v. Winter's Admistrator

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United States Supreme Court
143 U.S. 60
New York Company v. Winter's Admistrator
This was an action by David T. Winter, a citizen of Massachusetts, against the New York, Lake Erie & Western Railroad Company, a New York corporation, to recover damages for having been put off the defendant's train while a passenger thereon between Binghamton and Salamanca, New York. It was commenced in a state court of Massachusetts, and was afterwards, upon the application of the defendant, removed into the proper federal court, on the grounds of diverse citizenship and of local prejudice and influence. Several other railroad companies that were supposed to have property or funds in their hands belonging to the principal defendant were made parties defendant, as trustees or garnishees.
The declaration contained two counts. In the first it was alleged that on February 13, 1882, the plaintiff, being the owner of an unlimited first-class ticket entitling him to carriage on the defendant's road from Binghamton to Salamanca, took passage on the defendant's train at the former place, to be carried to the latter; that between Binghamton and Olean (a station on the road between Binghamton and Salamanca) the defendant's agent in charge of the train punched his ticket, at his request, so that he was entitled to 'stop over' at Olean, and returned it to him; that he did stop over at Olean, and the next day took a train on defendant's road to go to Salamanca on the aforesaid ticket; that the defendant's agent in charge of the last-named train refused to accept his ticket, but demanded payment of a cash fare from Olean to Salamanca, and, upon his refusal to pay the same, forcibly ejected him from the car in which he was riding, and removed him from the train, whereby his finger was broken, and other severe and painful injuries were sustained, that his luggage and apparel were taken away on the train, and he was thereby deprived of certain valuable papers; and the place where he was ejected from the train was a great distance from any public house; and that it was at a very late hour of the night, and the weather was very cold and inclement: all of which occasioned him great bodily and mental suffering.
The second count alleged that the defendant, by its agents and servants, made an assault upon the plaintiff, and ejected him from the cars in which he was lawfully traveling, and did him serious personal injury, and subjected him to great personal indignity.
The defendant answered with a general denial, and further alleged that when its conductor applied to the plaintiff for his ticket, after leaving Olean, the plaintiff presented a ticket which had been canceled to Salamanca, whereupon the conductor told him that such ticket was not good to Salamanca, and that the rule of the road would not allow him to, and he could not, accept it, although it would be good beyond Salamanca, and that he must pay full fare to that point, which the plaintiff refused to do, saying to the conductor to put him off, if he dared to do so; that the conductor told him he should be obliged to stop the train at the next station, and put him off; and that, the plaintiff still refusing to pay his fare when the next station was reached, the conductor stopped the train, and put him off, using no more force than was necessary and proper.
It was further alleged that the plaintiff had no lawful right to be transported over the road to Salamanca, and was traveling on defendant's cars in violation of a uniform rule of the road which was explained to him before he was put off, and without any lawful right whatever; and that, if he sustained any injuries of any kind, it was due solely to his own wrong.
The garnishees answered separately, and, with the exception of the Fitchburg road, each averred that it had no property or funds whatever in its hands belonging to the principal defendant. The latter company, in its answer, admitted having several thousand dollars in money belonging to the principal defendant.
Upon the issues thus made up the case went to trial in the state court, resulting in a verdict in favor of the plaintiff for over $6.000, which, upon motion of the defendant, was set aside by the court. Soon afterwards the cause was removed into the federal court, as before stated. Upon a trial in that court the jury returned a verdict in favor of the plaintiff and against the defendant for $10,000, and, judgment having been entered upon the verdict for that amount, this writ of error was sued out. Since the cause was docketed in this court the plaintiff has died, and his administrator is now representing his estate.
As shown by the bill of exceptions, the plaintiff, on the trial, to sustain the issues on his part, gave evidence to the following effect: On the morning of February 13, 1882, the plaintiff, a resident of Peabody, Mass, purchased an unlimited coupon ticket at the ticket office of the Fitchburg Railroad Company in Boston, from that city to Chicago, one of its coupons being for travel over the defendant's road from Binghamton to Salamanca, N. Y., at the same time telling the ticket agent that he wanted to buy a ticket which would enable him to stop off at Olean, N. Y., a town between Binghamton and Salamanca. The agent informed him that such ticket would cost him about three dollars more than an unlimited ticket good for one continuous passage over the same route, but it would allow him to stop over at Olean, as he has expressed a desire to do, by 'speaking to the conductor.'
Plaintiff took the ticket and started on his journey. When he reached Binghamton, three of the lower coupons had been given up, the next one being that for travel between Binghamton and Salamanca. After leaving Hornellsville, a station on the defendant's road between the lastnamed two places, the plaintiff said to the conductor as he came through the car to take up tickets that he desired to stop off at Olean, at the same time asking him if they would make connection at that point with a train running south on another road to a town called 'Portville,' where he wished to go for a short time on business. The conductor replied to him that that train would wait for them if they were late at Olean, and further said, 'I will fix you all right.' The conductor punched his ticket, and returned it to him. Reaching Olean, the plaintiff got off the train, made his journey to Portville, returned to Olean, and took passage on the next west-bound train over the defendant's road, to complete his journey to Chicago. When the conductor came for his ticket, the plaintiff handed the ticket, attached to which was the punched coupon from Binghamton to Salamanca. The conductor looked at it a minute and threw it back to him, remarking that it was 'no good,' and that he would have to pay his fare from Olean to Salamanca. After some wrangling over the matter, the plaintiff still refusing to pay the extra fare demanded unless the conductor would give him a written receipt therefor, and the conductor refusing to give such receipt, the latter stopped the train at a small station called 'Allegheny Station,' about the middle of the night, and, with the assistance of the brakeman and other employes of the road on the train, forcibly ejected the plaintiff from the train, using much more violence and force than was necessary and proper for such purpose, so that the plaintiff was severely injured in his left arm and wrist, from which injury he has suffered great pain and anguish, and has received medical treatment. Upon reaching the platform, the plaintiff, seeing that the night was very dark, and the weather very cold, offered to pay the extra fare on to Salamanca if the conductor would allow him to re-enter the train; but this the conductor refused to let him do, and in doing so used offensive and unseemly language. Part of the plaintiff's baggage, containing some clothes, was left on the train, and was never returned to him.
He spent the night at Allegheny station, and on the following morning hired a carriage and drove back to Olean, where he again took a west-bound train on the defendant's road, and presented to the conductor the same ticket and coupon that had been refused the night before by the other conductor, and it was received without any question whatever as to its validity, and he continued on his journey. On cross-examination the plaintiff testified that he did not ask the conductor, before reaching Olean, for a stop-over check, and that nothing was said about such thing by the conductor; and, on being recalled by his own counsel, he stated that the agent in Boston said nothing about a stop-over check.
The plaintiff also introduced evidence tending to prove that it was the duty of the conductor, under a custom in relation to railroad matters, to give the plaintiff a stop-over check at Olean, without plaintiff asking for it, after the latter had stated that he desired to stop over at that place; and that the only difference between the form of a limited ticket, which was good only for a continuous passage, and an unlimited one, such as he had bought, giving stop-over privileges, was that in the limited ticket the agent selling it would punch out the year, month, and day it was sold, in the margin of the ticket, and punch each of the coupons with an L, whereas the unlimited ticket would not be punched at all by the agent selling it.
The evidence introduced by the defendant tended to contradict some statements made by the plaintiff with respect to the conversation had with the agent who sold him the ticket, and also as to the occurrences and conversations which took place between him and the conductor immediately prior to his being put off, and the amount of force used in putting him off; but the main facts in the case, as testified to by the plaintiff, were practically undisputed. The conductor who put him off was called, and testified, among other things, that he thought the plaintiff had a limited ticket, instead of one unlimited, and so reported to the company; but that that mistake on him part really made no difference, as the rules of the road forbade his taking the punched coupon at Olean, and required him to do as he had done, although, upon cross examination, he admitted that he knew the coupon had not been used to Salamanca, because the punch-marks in it had been made by the conductor on the train next ahead of his.
The rules and regulations of the road in force when these occurrences took place were introduced in evidence by the defendant, and, with respect to stop-over privileges, were as testified to by the conductor. It appeared that these regulations were put up in the cars of the company in 1875, but were not supposed to be remaining there in the year 1882; and it was not shown that the plaintiff ever had any knowledge or notice of their existence. The statutes of the state of New York allowing railroad companies organized under the law of that state to make needful rules and regulations relative to the management of their passenger traffic, and also permitting them to pur a passenger who refuses to pay his fare off their trains, using no more force than is necessary for such purpose, were also put in evidence.
The conductor of the train which finally carried the plaintiff to Salamanca was not called as a witness, nor was his absence accounted for; but there was evidence of a high official of the road, brought out on cross-examination, that there were other ways of providing for a passenger entitled to a stop-over privilege than by giving him a stop-over check.
All the plaintiff's testimony with respect to the damages he had sustained, and also with respect to his conversation with the agent who sold him his ticket, was admitted over the objections of the defendant, and exceptions were duly noted thereto.
At the close of the testimony the defendant presented 11 separate prayers for instructions to the jury, but the court declined to give them, except so far as they were embodied in the general charge, and the defendant excepted. The plaintiff's counsel then stated that he should not claim to the jury that more force was used in expelling the plaintiff from the train than was necessary to overcome his resistance; and that element was, therefore, eliminated from the case.
There is no question in the case respecting the measure of damages, as the instructions of the court upon that question were not excepted to.
Seth J. Thomas and Calvin P. Sampson, for plaintiff in error.
Clifford Brigham and Lewis S. Dabney, for defendant in error.
Mr. Justice LAMAR delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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