Railway Co. v. Trimble

15 S.W. 899, 54 Ark. 354, 1891 Ark. LEXIS 58

• Court: Supreme Court of Arkansas
• Decided: March 28, 1891
• Status: Published

Opinion

Cockrill, C. T. ’ J

1. Damages for ejection of jiiway passem The charge of the court upon the & 1 measure of damages assumes that the plaintiff was humiliated, that his feelings were wounded, and that he suffered “ pain of mind ” by being put off the train. Whether the plaintiff was humiliated and suffered as indicated, was a question of fact for the jury’s consideration.

The inference that one has so suffered may be legitimately drawn, without express proof of the fact, in a case where nothing is shown except that the servants of the railway have wrongfully expelled a passenger from one of its trains; because it is a state of feeling that would ordinarily exist where such an indignity is offered to the person of a passenger who is himself without: fault. And knowledge by the passenger of the fact that the railway would eject him unless he consented to submit to an illegal exaction, demanded in violation of a plain statutory duty which it had instructed its servants to disregard, would not deprive him of the right to recover for whatever mental injury-he might suffer from the indignity. But the proof in this case had a tendency to show that the plaintiff entered the defendant’s train in the expectation and with the desire that he- should be put off, in order that he might make a case for damages against the railway. If such was the case, he should recover nothing for wounded" feelings or pain of mind, for to the willing mind there is no injury. Railway v. Cole, 29 Ohio St., 126.

Moreover the charge assumes that there was proof that the plaintiff had sustained loss of business and damage to his reputation by the ejection, but there is no evidence in the record upon which a verdict for special damages upon either score could be sustained.

2. Recovery of penalty no damages'**1 for The plaintiff’s recovery of judgment for the statutory 1 J J 0 Pena-Ly for the same illegal overcharge of fare was not a bar to a suit for damages for the wrongful ejection from the train. W. U. Tel. Co. v. Cobbs, 47 Ark., 344. The court’s refusal to allow the plaintiff to put the judgment in evidence for that purpose was not error.

For the errors indicated the judgment must be reversed.

^3. Remita Actual damages in the sum of $2.65 only were proved, that being the extra cost the plaintiff was put to in reaching his destination by private conveyance. A remittitur will cure the errors indicated, and if the plaintiff will remit the excess of the judgment over $2.65, judgment will be entered here for that amount; otherwise the cause will be remanded for a new trial.

It is so ordered.