Missouri, etc., Ry. Co. v. Smith tender of his fare by a third person, with the passenger's consent, after the process of ejection had begun. Same-Damages-Instructions.-Plaintiff, a passenger on defendant's train, refused to establish his right to transportation or pay fare, and during the process of ejection a third person, with plaintiff's consent, tendered plaintiff's fare to the next station, which was not plaintiff's destination. Held that, if the ejection was wrongful, plaintiff was only entitled to recover damages for loss of time and inconvenience in reaching the station to which his fare was tendered, and that an instruction authorizing a recovery for inconvenience in being compelled to reach his "destination" by other means was erroneous. In Error to the United States Court of Appeals in the Indian Territory. See 89 S. W. 668. Clifford L. Jackson, for plaintiff in error. Preston S. Davis and William P. Thompson (Dennis H. Wilson, on the brief), for defendant in error. Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District Judge. VAN DEVANTER, Circuit Judge. This was an action against a railroad company for the wrongful ejection of a passenger from one of its trains. Briefly stated, the case presented by the evidence was this: The plaintiff, while riding upon a north-bound passenger train of the defendant, was ejected therefrom, between the stations of Choteau and Pryor Creek, upon his failure to produce a ticket, or other evidence of a right to transportation, or to pay his fare, when requested to do so by the conductor. He had entered the train at Choteau, or at Eufaula, a more southerly station, and his destination was Adair, a station north of Pryor Creek. He had no ticket or other evidence of a right to transportation, and was not intending or prepared to pay his fare. After the process of ejection had begun, and before its completion, a third person volunteered, with the plaintiff's assent, to pay his fare from the point at which he had entered the train to Pryor Creek. The conductor rejected this offer, saying, in substance, that he had given the signal for the train to stop, which it was then doing, and that the plaintiff was an impostor and had been put off several times before. There was conflicting evidence from which either of two conclusions could be reasonably drawn: One, that the plaintiff entered the train under the mistaken but honest belief, engendered by matters which need not be recited, that he could properly, and would be, carried to his destination, notwithstanding he was without a ticket or other evidence of a right to transportation and was not intending or prepared to pay his fare; and For the authorities in this series on the subject of the damages recoverable against a carrier of passengers, for the ejection of or for refusal or failure to carry a passenger, or for delay in transporting him, see foot-notes appended to Sappington v. Atlanta & W. P. R. Co. (Ga.), 22 R. R. R. 846, 45 Am. & Eng. R. Cas., N. S., 846; footnote appended to Louisville & N. R. Co. v. Fowler (Ky.), 21 R. R. R. 299, 44 Am. & Eng. R. Cas., N. S., 299. Missouri, etc., Ry. Co. v. Smith the other, that he was attempting fraudulently to secure transportation and to evade paying therefor, when he knew that he was not otherwise entitled thereto. In the course of the trial specific exceptions were reserved by the defendant to rulings of the court in the admission and rejection of evidence and to portions of the charge to the jury. A verdict was returned for the plaintiff, and the judgment entered thereon was subsequently affirmed upon the defendant's appeal to the Court of Appeals of the Indian Territory. 89 S. W. 668. The case was then brought to this court upon a writ of error. Upon the ground that they had not been set out with sufficient detail or precision in the motion for a new trial in the trial court, the Court of Appeals declined to consider some of the rulings and instructions to which exceptions were reserved, as before stated. In this we think there was error. When the motion for a new trial was presented and ruled upon, and when the appeal was perfected, rule 3 of the Court of Appeals provided: "And this court will consider any and every ruling or action of any of the district courts of this territory to which objection or exception was made or taken at the time of the trial, as the same is shown in the record in any given cause, irrespective of the fact whether such ruling or action of the court be set out especially in the motion for a new trial or not, provided that such ruling or action be set out in the assignment of errors, as required in paragraph 3 of rule 10." Ind. T. Ann. St. 1899, p. 937. The rulings and instructions before named, with the exceptions thereto, were shown in the record by a proper bill of exceptions and were particularly and separately set out and asserted to be erroneous in the assignment of errors contained in the appellant's brief, as required by paragraph 3 of rule 10. True, after the appeal was perfected, rule 3 was changed in respect of the manner in which errors claimed to have been committed at the trial should be specified in the motion for a new trial; but this change, whatever may be its prospective operation, did not and could not affect cases in which it was not possible to comply therewith by reason of their having theretofore passed beyond the stage of a motion for a new trial. This case was in that situation, and the Court of Appeals should have considered and disposed of it in conformity with the original rule. Two of the instructions to which exceptions were reserved were treated by the Court of Appeals as properly presented for its consideration, and it was held that neither gave cause for reversal. One of these was as follows: "The court instructs the jury that if they find from the evidence that, before the train was stopped, some other person or persons offered to pay the fare of the plaintiff due to defendant, to the conductor in charge of the train of the defendant company, that said fare so offered cannot be refused, no matter who makes it, and you should find for the plaintiff and against the defendant. In the absence of a regulatory statute-and there is none here -when a passenger refuses or fails to produce evidence of his Missouri, etc., Ry. Co. v. Smith right to transportation or to pay the lawful fare, after due demand. therefor, and after being accorded reasonable time and opportunity for compliance, he forfeits the rights of a passenger, and subjects himself to ejection from the train. And while there is some contrariety of opinion respecting the effect of a subsequent tender of compliance, the better and prevailing rule is that, when the refusal is willful, persistent, or capricious, or proceeds from a fraudulent purpose to evade paying for transportation to which he knows he is not otherwise entitled, the passenger cannot, by recanting and tendering compliance, after the process of ejection has begun, entitle himself to transportation and render the completion of the ejection wrongful. State v. Campbell, 32 N. J. Law, 309; Railroad Co. v. Skillman, 39 Ohio St. 444; Pease v. Railway Co., 101 N. Y. 367, 5 N. E. 37, 54 Am. St. Rep. 699; Clark v. Railroad Co., 91 N. C. 506, 49 Am. Rep. 647; Railroad Co. v. Asmore, 88 Ga. 529, 15 S. E. 13, 16 L. R. A. 53; Railroad Co. v. Garrett, 8 Lea (Tenn.) 438, 41 Am. Rep. 640; Railroad Co. v. Harris, 9 Lea (Tenn.) 180, 42 Am. Rep. 668; Garrison v. Railway Co., 97 Md. 347, 55 Atl. 371, 99 Am. St. Rep. 452; Harrison v. Fink (C. C.) 42 Fed. 787; 2 Hutchinson on Carriers (3d Ed.) § 1085; 4 Elliott on Railroads, § 1637. When the tender is made by a third person, with the passenger's assent, it will be effective, or otherwise, in like manner as if made by him. Railroad Co. v. Garrett, 8 Lea (Tenn.) 438, 445, 41 Am. Rep. 640. Tested by these rules, the instruction not only did not contain a correct statement of the law, but, when applied to the case made by the evidence, as before recited, was calculated to operate prejudicially to the defendant, because it erroneously gave the jury to understand that, even though the plaintiff's refusal or failure to comply with the conductor's lawful demand proceeded from a fraudulent purpose to evade paying for transportation to which he knew he was not otherwise entitled, a subsequent offer by a third person to pay his fare, made after the process of ejection had begun and before the train was brought to a stop, would entitle him to transportation, and would render the completion of the ejection wrongful. The other instruction related to the measure of damages, and was as follows: "The elements that go to make up the damages which the jury is to consider in this case, and which the plaintiff may be entitled to receive, are: Loss of time, humiliation in being put off of the train of the defendant company, and the inconvenience of being compelled to reach his destination by other means, together with any suffering of mind and of body that he was compelled to undergo by reason thereof, and any and all damages sustained by him as the direct and natural consequence of the fault of the said defendant company, in the event that you find from the evidence that the plaintiff was wrongfully and unlawfully evicted from the train." As before stated, the plaintiff's destination was Adair, but in no permissible view of the evidence was he entitled to transportation St. Louis Southwestern Ry. Co. v. Wainwright to that place. The tender which was made in his behalf did not include the fare to Adair, but only that to Pryor Creek, the next station beyond the point where he was ejected. So, if the ejection was wrongful, he was entitled to damages for loss of time and inconvenience in reaching Pryor Creek by other means, but not in reaching Adair, his destination. As there was prejudicial error in each of these instructions, the judgment of the Court of Appeals and that of the trial court are reversed, and the case is remanded to trial court, with a direction to grant a new trial. ST. LOUIS SOUTHWESTERN RY. Co. v. WAINWRIGHT. Carriers Injury to Passengers-Premature Starting of Train— Question for Jury.*-In an action against a railroad company to recover for a personal injury, the evidence was conflicting, but in one aspect tended to show that, while a vestibuled train of defendant was stopped to let off and take on passengers at a station platform where there was no depot or agent, plaintiff, after waiting until passengers came out, as required by defendant's rules, immediately started to go up the steps while the train was yet stationary and the vestibule doors open, intending and prepared to pay his fare and become a passenger; that, as he placed one foot on the step, the train suddenly started, and his other foot struck against a pile of freight on the platform in close proximity to the cars, and he was dragged from the steps under the car and injured. Held, that such evidence, if believed, warranted a finding that plaintiff was intending to take passage on the train, in which case he was entitled to the same protection as an accepted passenger and to a reasonable time to enter after the other passengers had alighted; that he acted with due care, and his injury was due solely to the negligence of defendant's servants in starting the train before he could do so; and that therefore it was not error to refuse to direct a verdict for defendant. Writ of Error-Review-Discretion of Court-Ruling on Motion for New Trial.-A motion for a new trial in a federal court is addressed to the sound discretion of the court, and its ruling thereon cannot be assigned as error. *For the authorities in this series on the question who are, and are not passengers, see foot-notes appended to Malott v. Central Trust Co. of Greencastle (Ind.), 22 R. R. R. 189, 45 Am. & Eng. R. Cas., N. S., 189; foot-notes_appended to Chicago Union Traction Co. v. Rosenthal (Ill.), 21 R. R. R. 747, 44 Am. & Eng. R. Cas., N. S., 747; foot-notes appended to Waller v. Wilmington City Ry. Co. (Del. Sup'r. Ct.), 21 R. R. R. 727, 44 Am. & Eng. R. Cas., N. S., 727; footnotes appended to Smallwood v. Baltimore & O. R. Co. (Pa.), 21 R. R. R. 290, 44 Am. & Eng. R. Cas., N. S., 290; Colorado Springs, etc., Ry. Co. ". Petit (Colo.), 21 R. R. R. 132, 44 Am. & Eng. R. Cas., N. S., 132. St. Louis Southwestern Ry. Co. v. Wainwright In Error to the Circuit Court of the United States for the Eastern District of Arkansas. J. C. Hawthorne (S. H. West, on the brief), for plaintiff in error. J. W. House (H. A. Parker and M. House, on the brief), for defendant in error. Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District Judge. VAN DEVANTER, Circuit Judge. This was an action to recover for injuries sustained by the plaintiff below while he was in the act of entering a passenger train of the railway company at Keevil, Ark., with the purpose of becoming a passenger. The negligence charged against the defendant was that freight was piled upon the station platform too near the track, that the train was not stopped long enough to permit intending passengers to enter in safety, and that after the plaintiff had placed one foot upon the steps to the car, and when he was lifting the other thereto, the train was suddenly started, and he was quickly carried against the freight upon the platform, and was thereby pulled off the steps and thrown under the train. In its answer the defendant denied that the plaintiff intended to become a passenger, and that it was guilty of any of the negligence charged, and alleged that the plaintiff's injuries were occasioned by his own negligence. The trial resulted in a verdict and judgment for the plaintiff. Complaint is made of the court's refusal to direct a verdict for the defendant. The evidence was conflicting, and, in one view, tended persuasively to show these facts: The train in question was a vestibule passenger train and stopped at Keevil to let off and take on passengers. There was no depot or agent there, and a portion of the platform had become incumbered by freight which was piled thereon to within 17 inches of the train and to a height of 4 feet. After the train came to a stop, the plaintiff presented himself on the platform, at the place where the vestibule doors were open and passengers were alighting. He intended to take passage to a near-by station, at which the train regularly stopped, and was prepared and expected to pay his fare. A rule of the defendant, of which he had knowledge, forbade intending passengers to enter until after those who were debarking had alighted. Immediately after the passengers for that station had alighted, and while the train was yet stationary and the vestibule doors open, he took hold of the handrails, placed one foot upon the steps to the car, and was in the act of raising his other foot thereto, when the train suddenly started, and the foot which he was raising was quickly carried against the projecting pile of freight, whereby he was pulled off the steps, thrown under the train, and sustained severe injuries. The trainmen did not observe that he was intending or attempting to enter the train, but they could readily have done so had they been attentive to their duties. As before stated, the evidence was conflicting; but, putting upon it the construction most favorable to the plaintiff, as must be done in considering the present complaint, we think it amply justified the |