Alabama & Vicksburg Railway Co. v. Livingston

84 Miss. 1

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Whiteiet-d, C. J.,

delivered the opinion of the court.

We do not think there was any impHed contract to carry appellee as a passenger. He must be treated as a trespasser, but not as a willful trespasser. He must be regarded as having boarded the train believing that Bustin had authority to allow him to travel on a freight train. But the evidence makes it equally clear that he was put off under circumstances of insult and outrage, and that, too, by the conductor acting in the line of his duty. The conductor had a right to put him off under proper circumstances and at a proper place and time (Hudson v. Lynn & B. R., 178 Mass., at page 67, 59 N. E., 647; Louisville, etc., R. v. Sullivan, 81 Ky., 634 [50 Am. Rep., 186]); but it was his duty, even towards this trespasser, not to willfully and maliciously wrong him by insulting and abusing him when he put him off. Because of the mode in which he was ejected, to wit, because of the cursing and abuse on the part of the conductor, we think the company is liable for punitive damages.

My brethen think, however, that the damages are too large, and that $1,000 only should be allowed. I would prefer to allow the full amount to stand, speaking for myself, under all the circumstances of this case; but my conviction is not strong enough to warrant dissent about a nmre matter of damages.

If, therefore, the appellee will remit $1,000, the judgment will be affirmed; otherwise the cause will be reversed and remanded.