NORTHERN PAC. RY. CO.
847
JOHNSON·.V. NORTHERN PAC. (Oircuit Oourt, D. Washington, E.D.
Ry. CQ. April 15, 1891.)
1.
CARRIERS OF PASSENGERS-EJEC'rION FROM CARS.
Plaintiff purchased a ticket for an extended journey, the latter part of which was over aefendant's road. ·Bymistake'the agent punched the ticket so as to indicate that it expired on the aay on which it was issued. The mistake was not discovered until l!he was on the first division of defendant's road, When the conductor, upon telegraphing to the heado1Jlce, received orders to honor the ticket until further instructions.. At the end of his division, when he left the train, he delivered her the The conductor of th\l next division, notwithstanding the telegram, and . the eVidence on the' face oftbe tick&t that it had been honored, telegraphed to the division superintendent,. !Ind. ,received no answer, and meanwhile, from time to time, for several hours, Worrie(j. plaintiff by making remarks calculated to disturb her, aud make her realize the disadvantages of her situation, and shOWing a desire to be unduly familiar. Fil:lally, about midnight, after she had been carried a great distance, he put her off the train. She had explained in her first conversation tillit sbe was far from home,. her means were exhausted, and she was Dot al;>le to pay her fare. Held, that plaintiff was entitled to recover damages for the expulsion and ill treatment, in an action on the contract represented by the ticket. A verdict for $1,000 haYing set aside, and a new trial granted, a second verdict for was rendered. That, too, was set aside, and on the third trial another verdict for $1,000 was rendered. Held, that the limits of the court's,dishad been reached, and the verdict, would not be disturbed as excessive. Where it' appears that the jury arrived at a verdict by each juror writing the amount which he was willing to give, adding the several amounts together, and dividing the total hy 12, the verdict wi!l\lot be aside for that reason, wtlera it further appears that no agreement was made to abide the reSUlt, and where the atnount agreed upon is much less than the quotient so obtained.'
2.
SAME-VERDIC'r-MEASVRE OF DAMAGES.
3. SAME-MISCONDUCT OF JURY.
At Law. On motion for new trial. L. H. Prather and R. J. Danson, for plaintiff. J. H. Mitchell, Jr., for defendant. HANFORD, The first trial of this case was had in the territorial .district court, resulting in a verdict in favor of the plaintiff for $1,000, which was set aside, and a new trial granted, on motion of the defend:anl. Upon a second trial the jury returned a verdict for $500. That verdict was also set aside by the court. The third trial of the case was bad in this court, and resulted in a verdict in favor of the plaintiff for .$1,000, and the defendant for the third time asks for a new trial. Three principal grounds are urged in the argument. The first is that the plaintiff is not entitled to recover damages in this action. The decision of that question necessitates consideration of the pleadings and the evi,dence, and a review of the whole case. The action, as I construe the pleadings, is based upon a contract to l'ecover damages resulting from personal injuries caused by a tortious breach of the contract, and it is therefore to be distinguished from numerous decisions holding that where in his complaint the plaintiff pleads only a wrongful and torcible expulsion from a passenger train, and the defendant justifies by showing the failure of the plaintiff to present, when called upon, a proper ticket, pay fare, or least' the train. In such an action the complaint is for a tort, pure and simple, and, as it is the
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348
. i'&DERAL REPOR'rER,
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duty of a passenger to present a ticket, pay fare, or leave the train, wben called upun, his failure to do either is wrongful, and'Db tort is cOlllmitted by the officers of the train in ming reasonable and sufficient force to eject him. The complaint and the evidence shows that the plaintiff applied to an agent of defendant for a ticket entitling her to transportation The agent to a. specified point, to which she' wished to make a could not furnish exactly such a ticket as she asked for, but he then made a proposition to sell her a second-class limited ticket to a place near the point to which she wished to go, which proposition the plaintiff accepted. She paid the stipulated price, and received a ticket, which she supposed to ,be good for the intended journey. The transaction took place at a railroad station, and was concluded hurriedly, during a short interval between the opening of the ticket-office and the departure of the train upon which the plaintiff commenced her journey. If the plaintiff had taken the pains to carefully examine her ticket before accepting and paying for it, she probably would not have been able to have discovered thfl error committed by the agent in punching it, which in part caused the trouble eventuating in this lawsuit; Lut she relied upon the agent to perform his duty in issuing to her a proper ticket, conformable to his instructions and the requirements of the railroad company. I hold that in issuing that ticket the company contracted to furnish her transportation and protection from abuse and insult while on herjourney, and also warranted that the ticket issued was good for the trip. It was a coupon ticket, and the coupons were accepted by the conductors of the connecting road over which the plaintiff made the first part of her journey. At St. Paul she was admitted to the train of the defendant after exhibiting her ticket to the gate-keeper at the depot, and ehe had been carried a portion of the wayan the defendant's road before discovery of the mistake made by the agent who sold her the ticket in punching it so as to make it indicate that the time limited \vithin which it should be good had expired, the date of expiration as punched being the very day on which it was issued; but, as the date of its issue was not stamped or written, the mistake was not apparent from the ticket itself. Upon discovery of the mistake, the conductor of the train, instead of requiring the plaintiff to pay fare or leave the train at once, made inquiry by telegraphing to the defendant's head office at St. Paul, and in response to his inquiry received a telegraphic order to honor the ticket until further instructions, 'and no other or different instructions or notice was afterwards sent 1Tom that office. The plaintiff was permitted to continue on her journey to the end of the division at which this cbhductor left the train, and all leaving he delivered to her the telegram which he had received from St. Paul. The conductor of the next division, when the ,ticket was presented to him, received with it the telegram from the head offioe, but instead of obeying it, or applying for further in'struetions, or requiring her to pay fare or leave the train at once, he telegraphed for instructions to the division superintendent, but received no response. Then, as the testimony on the part of the plaintiff tends to prove, he commenced worrying the plaintiff, and making
JOHNSON'll. NORTHERN PAC. RY. CO.
349
remarks to her 'which,i{not intended to be insulting, were certainly suggestive of a desire on his part to disturb her, by making her realize the disadvantage of her situation, anelto be unduly familiar. He continued, with frequent repetitiOns, d:uring several hours, to thus torment the plaintiff, and she was meanwhile carried a great many miles on the train. Finally, at about midnight, the conductor, with the assistance ofa police officer found at Missoula station, removed the plaintifl from the 'A fellow-passenger then purchased a ticket for her, and she was permitted to re-enter the car, and continue her journey. The plaintiff explained in her first conversation with this conductor tha.t she was uuableto pay her fare, as she was far frora home, and from her destination, and her means were exhausted. The ticket itself bore evidence that it had been honored by other conductors, and that fact, in connection with the telegram from head-quarters, was sufficient evidence of the validity of the ticket, and, under the rules of the company , it was the conductor's duty to have accepted it. By forcibly expelling the plaintiff from the train, and its failure to protect her from ill-treatment, the defendant's contract was broken, and the plaintiff suffered an injury. thereby entitling her to recover damages in an action on the contract. The next question is as to the measure of damages. The testimony in the case which went to the jury had a tendency to lJrove that the plaintiff was damaged, not only by reason of mental and physical suffering at the time, but for months afterwards, by reason of nervousness brought on by the ordeal through which she passed, her health was impaired, and she was partially incapacitated for doing her usual work. There is then in the testimony, as well as in the allegations of the complaint, a showing of peculiar injuries to the plaintiff, giving her a claim to special damages by reason of the tortious manner in which the contract was broken. The court instructed the jury, in effect, that if, according to the decision of the jury, the plainti fl' should be entitled to recover, the measure of damages would be reasonable compensation for the injury actually sustained by the plaintiff, and that exemplary damages could not be awarded. There is no ground for supposing that the jury were actuated by passion or prejudice, or that they intended to disregard this instruction. Even if my opinion of the case would warrant me in regarding the sum awarded by the verdict as excessive, still, being the result of the third trial, and being the sum twice fixed upon by successive juries, I think the limit of the court's discretionary power in grant· ing new trials for this particular cause has been reached. The third and last ground for the motion is alleged misconduct of the jtiry, in this: that the verdict was arrived at by each juror writing the amount which he was willing to fix as the amount of damages recoverable, and adding the several amounts so given, and dividing the total by 12. From affidavits on file I fintl the facts to be that, for the purpose of coming to an agreement, if possible, the jury did resort to the above method 'of addition and division of numbers, but the verdict was not arrived at in that way, There was no agreement made to abide the reRult. The amount of the damages awarded is much less than the
350
FEDERAL REPORTElh
vol. 46.
quotient obtained by the procesS abovementioned, nnd the verdict was freely assented: to by all of the jurors. ,While one or more of them :may havebeen,therepy infl.uenced to consent to a verdict for, sum than he otherwise wopld have proper amount of they were not coerced nor deceiyed. Each juror was free togive or hold his consent, and of it, and they actqally balloted after the proceeding .referred to: and before agreement more than was arrived 'at.n is not practicllble,for the court to control a jury dllring their deliberations to the ext{jnt.,Ofprlflscribingor ,proscribing any particular arguments or methods of persuasion that mayor may not be for tIle used by them to influeulileeach other; and it is bers of the jUl'yto inflWlnGe eaell otller by any, llffective II,lethod free from fraud and intimidation. For th!lli\e reasons I do nqt regard the jury as being guilty of misconduct for wl:1i.ch' their ver,dict should be !'let aside. The motion for ·anew trial will therefore be denied.
UNITED STATES V.BAXTER
et al. June, 1891.)
(CircHit Court, D. Washington, N. D.
TRESPASS-CUTTING TIMBER, ON PUBuoLANllS-EvIDENOE OF VALUE.
In an action of trespass for cutting timber upon public lands, upon an issue as to the value of the saw-logs at a particular place, it is error to permit witnesses to testify as to the value of saw-logs generally at that time, without having their attention directed to the place in question. .
'2.
SAME-BuRDEN OF PROOF-DAMAGES,
In an action of trespass by the United States for cutting timber on government land the burden of showing that. the timber was cut by with a view of mitigating the damages, is upon the defendants; and, in the absence of evidence to that effect, there is no elTor in permitting the government to recover the value of the saw-logos when already brought to the water.
:3.
SAME-PAHTNEHSHIP.
Where such a trespass is committed by a firm, one partner cannot show that as to him it was done through mistake, though his partner may not have been mistaken, and ask that one judgment for damages be rendered against him and a different one against his partner, since his holding the fruits of the tort after being .notified of the mistake is a ratification of his partner's act.
At Law. On motion for new trial. P. H. Winston, U. S. Atty., for the United States. W. R. Andrews, for defendants. KNOWLES, J. This action was instituted un the part of the United States to recover damages for a trespass upon certain of its lands bordering on Puget sound. It is alleged in the complaint that defendants entered upon this land, and cut a large number of trees, of the value of .$11 ,000. The defendant Baxter denied the trespass. The defendant Hansen made no appearance in the case, and a detault against him was entered. The United States had judgment in the district court of Washington territory where the suit was instituted. The defendant Baxter ap-