Case one of two
31 Ky.L.Rptr. 871, 13 L.R.A.N.S. 624
Court of Appeals of Kentucky.
Sept. 25, 1907.
ACTION: Reversed and remanded.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by H. P. Cottengim against the Louisville & Nashville Railroad Company.
From a judgment for plaintiff, defendant appeals.

Appellee took passage on appellant's passenger train from Corbin to Barbourville. He did not have a ticket, and was drunk. When the conductor asked him for his ticket he responded that he had none, but held out a silver dollar (the fare was 49 cents) and asked the conductor to give him the change. When the conductor offered to take the money, appellee drew it back and demanded his change first. The conductor again offered to accept the money and then give the change, but appellee again drew back his hand and refused to give up the money. The conductor told him he would have to pay the fare or be put off the train. Failing to pay, the train was stopped, and, appellee refusing to get off, the conductor and flagman picked him up and put him off. If this had been all that occurred, we would have no trouble in holding the railroad faultless in the matter; but after the engineer had been signaled to stop, and the train began to slow down, and the conductor and flagman had started to remove appellee, he told them to stop, that he would pay his fare. But they paid no heed to him. He claims, and introduced evidence to show, that the trainmen maltreated him, using more force than was necessary, actually throwing and kicking him from the train while it was in motion. An issue of fact is made in the evidence on this point; but it was submitted to the jury, who found the matter to be as claimed by appellee. We cannot say from the record that their verdict was unauthorized. A passenger should, if he has opportunity, provide himself with a ticket before entering the car. Or, failing that, he should tender the conductor the correct fare to his destination. Or he should tender enough money to pay his fare. If he fails to do so, then he is not a passenger, but a trespasser. Tendering more than the correct fare, without demanding change, is a good tender; but, if coupled with a demand for change as a precedent condition to giving up the money tendered, it is not. Appellee's conduct in trifling with the train conductor not unreasonably produced the impression that he did not intend to tender the fare. Holding it in his hand and refusing to give it up was no better than if he had kept it in his pocket. After the ejection had begun, a tender might then have been made with the same effect as to restoring appellee's rights as a passenger, according to L. & N. R. R. Co. v. Breckinridge, 99 Ky. 1, 34 S. W. 702, a doctrine we are inclined to follow as not unreasonable, although there is considerable respectable authority to the contrary. But there should have been a tender. A mere spoken offer to pay, in the light of what had transpired, need not have been noticed. Up to this time the rulings of the trial court were in accord with what has been said.

Although appellee was a trespasser because of his failing to pay or tender fare, and of his conduct, still the trainmen had not the right to throw him from the moving train, or to kick him off, or to use more than was reasonably or apparently necessary to eject him and protect themselves from injury at his hands. For using such excessive force and throwing and kicking appellee off the train, appellant is liable in damages, the measure of which is, in the first place, such sum as will compensate the plaintiff for his physical and mental suffering resulting from any injury so occasioned, and for any impairment of plaintiff's earning capacity and loss of time resulting from the injury. In addition, if the trainmen's conduct was oppressive, malicious, or wanton, the jury were permitted to award punitive damages. The court's instructions covering measure of damages were as follows: "(2) Now, in this case, the court says to the jury that if they shall believe from the evidence that the conductor, or any of the agents and servants of the defendant, in charge of the train on this occasion mentioned in evidence, used more force than was necessary, or appeared to them in the exercise of a reasonable judgment to be necessary, in order to put plaintiff off the train, and thereby injured him in his legs or body, then you ought to find for the plaintiff a fair compensation according to the evidence for the injury sustained by him in so doing; and if you shall further believe from the evidence that the agents and servants of the defendant in charge of that train maliciously assaulted, beat, and bruised plaintiff, or maliciously carried plaintiff to the steps of the train and threw him therefrom, or maliciously kicked him so as to injure him in the body or legs, or if they maliciously cursed plaintiff, so as to intimidate him in the presence and hearing of so many people, then you ought to find for plaintiff such punitive damages, in the way of smart money, as will in your judgment from the evidence be proper and adequate punishment of the defendant for such malicious conduct, if any, not exceeding in all the sum of $5,000, the amount claimed in the petition." The correct measure of compensatory damages was not given; nor should the court have told the jury that they "ought" to award punitive damages in the event the grounds therefor existed. The infliction of such damages is a matter within the discretion of the jury solely. It is error for the court to indicate that the jury ought to award such damages.

Appellee argues that, though this instruction were incorrect, still the verdict ($400) did not include exemplary damages, and therefore the error was harmless. If appellee sustained the physical injuries to the extent claimed by him, it would seem that the jury gave him compensation only. But there is a dispute as to the extent of his injuries; the railroad company even contending that he was not injured at all by the trainmen, but that his injuries, if he had any, resulted from other causes, and probably after he had left the train. Be that as it may, it was for the jury to say whether he was injured by the railroad company and to apply the correct standard of compensation to such. It was said by this court that a verdict for $500 for the ejection of a passenger who was not injured, and where there was no oppressive conduct toward him by the trainmen, was excessive. Inasmuch as neither of the instructions on the measure of damages was correct, the award by the jury, whether for compensation only, or for punishment only, or for both, has nothing to support it.

There are two matters of evidence also calling for notice. Appellee was permitted to testify that he was joking, and had really intended to pay his fare, and would have done so. Unless he had stated to the conductor that he was joking, or the fact was known to that official, the evidence seems to us to be immaterial. The secret purposes of one, in contravention of his express words or acts, are not receivable to relieve him from the effect of the latter, when another has been induced to act upon them as sincerely spoken or intentionally done.

Appellee was allowed to ask the conductor, when the latter was testifying as a witness, whether he had not heretofore knocked passengers down, and his company had been sued for the act, and if it had not occurred frequently. As evidence to show that the conductor in the instant case has assaulted appellee, it was not relevant. We have the rule in this state that a common carrier corporation is liable for the wanton and malicious act of its servants done in the course of their employment, whether or not the master knew of the character of the servant. Other jurisdictions have sometimes held that the master is not liable unless it knew of the servant's character or reputation, and continued him in its service notwithstanding such knowledge. In such jurisdictions the evidence under discussion would have been relevant as tending to show the master's knowledge of the servant's character. But with us the knowledge of the master is not necessary to make it answer for the servant's conduct, when acting as such servant. Therefore the evidence was not receivable for that purpose. In no event was it material or pertinent to the case in hand.

For the reasons given the judgment must be reversed, and the cause remanded for a new trial under proceedings not inconsistent herewith.

Ky.App. 1907.
104 S.W. 280, 31 Ky.L.Rptr. 871, 13 L.R.A.N.S. 624

Case two of two
Court of Appeals of Kentucky.
May 28, 1909.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by H. P. Cottongim against the Louisville & Nashville Railroad Company.
Judgment for plaintiff, and defendant appeals.

This is the second appeal of this case. On the former appeal the case was reversed for errors in the instructions. The opinion may be found in 104 S. W. 280, 13 L. R. A. (N. S.) 624. On return of the case, appellee obtained a verdict for $2,500. From the judgment based thereon, this appeal is prosecuted.

On March 24, 1905, appellee boarded appellant's south-bound passenger train at Corbin for the purpose of going to his home at Barbourville. He had been at Corbin for quite a while and had taken several drinks. When about a mile and a half out of Corbin, the conductor in charge of the train approached appellee and called for his fare. Appellee, having no ticket, drew a silver dollar from his pocket, reached it towards the conductor, and called for his change. The conductor said, in substance: "Give me your money, and I will give you your change." Witnesses differ as to the number of times appellee reached out the dollar; but the weight of the evidence tends to show that he did this at least twice. The conductor then told appellee he would have to pay his fare or be put off the train. Failing to pay, the conductor pulled the bell cord for the purpose of stopping the train, and he and the flagman took hold of the appellee, carried him to the end of the car, and put him off.

According to the testimony for appellee the conductor grabbed him, bent his legs almost over his head, burst the buttons off his vest, and tore the vest from him. After the conductor seized him, appellee, who still held the money in his hand, said, "Here, I will pay you," and reached the money out. The witnesses differ as to the exact words used. One quotes his language as above; another testifies that appellee said, "Here's the money;" while still another says appellee used the language, "Here, take it." While he was being carried out, the appellee told the conductor and flagman to stop; that they were hurting him. They were treating him in a pretty rough manner. When they reached the platform, the conductor kicked appellee and cursed him. The flagman was standing on the ground. The conductor walked down a step or two, and the flagman pulled appellee to the ground. He fell and injured his knee. His leg and knee were badly bruised and swollen. The swollen condition lasted for some weeks.

According to the testimony for appellant, appellee made no tender of his fare after the conductor and flagman took hold of him for the purpose of ejecting him from the car. Neither the conductor nor flagman remember to have heard appellee say they were hurting him. Appellee was not kicked, and they used no more force than was necessary to eject him from the train. Neither the flagman nor the conductor cursed appellee. The conductor himself, in describing the method employed in putting appellee off the train, used this language: "Yes; his feet fell on the ground as he (the flagman) jerked him down."

It is insisted by counsel for appellant that the court erred in submitting to the jury the question whether or not appellee made a tender of his fare after the conductor and flagman started with him to the end of the train. In support of this position, we are cited to the language of this court in the opinion on the former appeal, wherein it was said: "But there should have been a tender. A mere spoken offer to pay, in the light of what had transpired, need not have been noticed." The evidence in the record before us, however, shows more than a mere spoken offer to pay. If appellee's witnesses are to be believed, he, while having the money in his hand, said, "Here, I will pay you," and reached the money out. As one of the trainmen had him under his arms, and the other had him by his legs, he could not have well made a tender in any other way.

The court did not err in giving an instruction authorizing punitive damages. There was evidence to show that appellee was handled in a pretty rough manner; that he was kicked as he was ejected from the car; that one of the trainmen cursed him, and that the flagman actually jerked him from the train; and, furthermore, that he was badly bruised by the fall. Under the circumstances, the issue was one for the jury, and we are unable to see that their finding is flagrantly against the evidence.

It is next insisted that the verdict is excessive. Where there is evidence tending to show that the person ejected tendered his fare after the trainmen started to eject him, that they handled him in a pretty rough manner, and he was actually jerked from the train and thrown against the ground so hard that his leg was bady bruised and swollen, and remained in that condition several weeks, and that while so injured he was compelled to walk a mile and a half to the next town, we are unable to say that a verdict for $2,500, where punitive damages are authorized, is so glaringly excessive as to appear at first blush to have resulted from passion or prejudice. It is only in such cases that we have the power to set aside a verdict on the ground of excessive damages.

Judgment affirmed.

Ky.App. 1909.
119 S.W. 751


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