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! at error, but they, as does the reasoning of the which he holds a ticket, by reason of misplaintiff in error, depend upon what seems | information received from the agent from to be an evident fallacy. They assume as a whom he had purchased his ticket, may be premise that the act of the conductor in lawfully ejected at a regular station preputting the plaintiff off was rightful, and ceding his destination, where he has been therefore the company cannot be held guilty notified by the conductor that the train does of a tort. But the act of the conductor is not stop at the point for which he holds a immaterial except as it affects the liability ticket, and requested that he leave the train of the company: The suit is not against at a stopping point short of his destination, him, but against the company. As between but has refused to comply with the request. the conductor and the company, the latter Runyon v. Pennsylvania R. Co. 74 N. J. L. may have no right to complain of him. He 225, 68 Atl. 107. The court stated that the violated no duty he owed to the company. railroad company was under no obligation He simply obeyed his instructions as re- to stop its train at the passenger's destinaceived from the company, applicable to such tion, notwithstanding the representation a case. Therefore, it may well be said that made to him by the ticket agent, and it was as between him and the company, the con- the duty of such person when informed that duct of the conductor was rightful. But as the train would not stop at that station between the company and the passenger, the either to tender such fare as would entitle question is wholly a different one. Where a him to ride to some stopping point beyond, company, by the act of a proper agent, or else to comply with the request of the causes à passenger, as in this case, to take conductor, and change cars at a stopping the wrong train,--one that does not stop at point short of his destination; that in the his station,-it must be held to have con-operation of a railroad the safety of those templated that, under the instruction given traveling upon it requires that the trains its conductor, the passenger would be put running over it shall be moved according to off the train as soon as the error should be a prearranged schedule, and this safeguard discovered by the conductor, unless he would be practically destroyed if a should, as demanded, pay additional fare ductor was bound to stop his train at a and be carried beyond his station. The act station not a scheduled stopping point, of the first agent of the company, misdirect. whenever a passenger was wrongfully in: ing the passenger, is the wrongful act for formed by a ticket agent that the train which the company becomes liable in tort, would take him to that station. The court and the act of the conductor in ejecting him added that the view expressed in the deci. is a consequence of the first wrongful act, -sions of some jurisdictions, that misinformais the proximate cause of the passenger tion as to the stopping of a train at a parbeing ejected; and as against the passenger, ticular station, given by a ticket agent to the act of the conductor in ejecting him, an inquiring passenger, and acted upon by being the act of the company, is wrongful. the latter, constitutes a contract between the The fallacy, as before stated, arises out of railroad company and the passenger, had not the mistaken assumption that the act of the been accepted by the courts of New Jersey. conductor is rightful as against the pas. The court distinguished this case from Mcsenger. This can in no instance be the case Donald v. Central R. Co. 72 N. J. L. 280, 2 where the company is responsible for the L.R.A. (N.S.) 505, 111 Am. St. Rep. 672, 62 mistake of the passenger in taking the Atl. 405, 19 Am. Neg. Rep. 378, stating that wrong train. All the cases cited in support it lacked a vital element which was present of the contention of the plaintiff in error, in the McDonald Case; namely, the furnishthat in any way do so, are based on the ing of a time-table by the railroad comfallacy that the conductor had the right to pany's agent to the passenger, showing that eject the passenger, when, as a matter of the train concerning which he made inquiry law, the real question is whether the act of was scheduled to stop at the station to the company, done by its agent, is rightful which he purchased his ticket. as against the ejected party.

And in Lake Shore & M. S. R. Co. v. tion may be simplified by eliminating the Pierce, 47 Mich. 277, 11 N. W. 157, a judgfact of agency in each instance; that is, by ment predicated on wrongful expulsion was supposing that the common carrier in each reversed. The court stated that having instance acts for himself or itself. Here no been informed by the ticket agent that such mind would doubt but that the carrier, hav: train stopped at his destination, if the pasing instructed the passengers to take one of senger was not otherwise in fault in starthis trains, with knowledge of his destina-ing on the train, it was difficult to find tion, would be a wrongdoer, should he, on any reason why the company should not discovering his own mistake, eject him from carry him in some way to the place of his the train, on the ground that he had taken destination, as it had agreed to do; and he the wrong train. But the intervention of liad in such case a right of action for such an agent, by whom the act is done in each damages as a failure to perform that coninstance, does not change the case. For each tract involved; that the company could not act of the agent, done in the scope of his be justified in refusing to carry him to his agency, must be imputed to the principal,- destination, and to do so as agreed. But in is, in law, the act of the principal.”. holding that this did not necessarily give

On the other hand, it has been held that him a right to remain on the train after he a passenger who has taken a train which is had been told that it would not stop at his

The ques.

destination, the court said: "Whatever rem-, S. C. 478, 64 S. E. 418, that an action for edy he may have against the company for unlawful ejection could not be maintained, its breach of contract, he had no right to but that the action should be predicated on determine for himself on what train he a breach of contract to carry. would travel. The business of railroads can In International & G. N. R. Co. v. Hassell, only be carried on safely by having regular- 62 Tex. 256, 50 Am. Rep. 525, 6 Am. Neg. ity. If trains are arranged in a certain way, Cas. 514, it was held that one who boards and their time fixed with regard to limited a through train in reliance on the neglistoppages, a conductor would never be safe gent information of the ticket agent that it if he were bound at his peril to ascertain would stop at his station must leave the from any mere stranger the existence of an train at a regular stop preceding his destiagreement by the company to change the ar. nation, and on refusal to do so may be rangement and stop at an unusual place. ejected. Judgment for plaintiff, however, A passenger cannot compel a conductor to was affirmed on the ground that the manner deviate from his appointed scheme, and if sof ejection was improper. truly informed concerning the rule as to While a passenger has a right to rely stoppages, he is bound to conform his own upon information received from a ticket movements to it, and seek redress in some agent, when purchasing his ticket, as to other way. Everyone is bound to know that matters relating to the places where the the conductor is not invested with general train upon which he desires to embark will power to run his train as he pleases, and stop, and to recover from the company all that so far as he is concerned the trains resulting damages in case he is misled withmust conform to the schedule.” The court out his own fault, he has no right to readded that the passenger ought to have left main upon a train without paying addithe train at a regular stopping place; and tional fare, contrary to the rules of the comthen, if not furnished with passage to his pany, after he has been notified that the destination, the expense of such passage train will not stop according to the inforwould be a proper element of damages in mation received from the ticket agent. The addition to such, if any, as were occasioned conductor cannot be required to deviate from by the failure to take him through on the the rules under which he is compelled to train which he was told he could take, and run his train, nor to run his train except the consequent delay; that he ought to have in conformity to the schedule, which the law known that if he persisted in remaining on requires shall be posted up for the informathe train the conductor would probably re- tion of all, upon the statement by a pasmove him, and such a removal was not a senger of information received from a ticket distinct wrong in itself, because, after leav- agent. Chicago, St. L. & P. R. Co. v. Bills, ing the regular stopping place, he was 118 Ind. 221, 20 N. E. 775. This being an wrongfully on the train, and so could not action for wrongful ejection by use of exrecover damages unless for some unlawful cessive force, the remedy where a passenger violence beyond the necessity of the re- is ejected without the use of force was not moval; because it was lawful to take such involved; but the court intimated that an steps as were necessary to remove and keep action for damages in such a case should him removed from the train. Thus, such be based on the negligent misdirection of the

one cannot complain of an indignity ticket agent. which it is his duty to avoid incurring and In Gulf, C. & S. F. R. Co. v. Moorman, which he is bound to expect, the company Tex. Civ. App. 46 S. W. 662, action having power, subject to damages for any for damages sustained by being removed breach of contract involved, to determine for from train which was boarded in reliance itself what trains shall take passengers to upon the statement of the one in charge their destination.

of the ticket office that it would stop at Also in White v. Evansville & T. H. R. Co. passenger's destination, judgment for plain133 Ind. 480, 33 N. E. 273, it was held that tiff was aflirmed. Although not so expressan action for wrongful ejection based on a ly stated, it is probable that the action was negligent misdirection of the ticket agent based on the negligent misdirection, could not be maintained.

In International & G. N. R. Co. v. Kilgo, So, also, in Miller v. King, 21 App. Div. Tex. Civ. App. 71 S. W. 556, action 192, 47 N. Y. Supp. 534, it was held that to recover damages alleged to have been sus. where a ticket is sold to an intending pas- tained by being forced to alight from train senger by a ticket agent who erroneously because it did not stop at passenger's destiinforms the purchaser, prior to the issuance nation, where it was alleged that the train of the ticket, that the train will stop at his was boarded on information of ticket agent destination, and he boards such train relying that it would stop at such 'destination, an on that statement, the railroad company is instruction was held erroneous which predinot bound to stop the train at that station cated a recovery entirely upon the contents when it is not scheduled to stop there, and of the ticket, and not upon the conversathe passenger may be properly ordered to tion of the passenger with the ticket agent. leave the train at an intermediate stopping A conductor has a right to refuse to stop place, and the railroad company is only a train at a station at which, under the Îiable to the passenger for a breach of the rules and regulations of the company, it is contract to carry him to his destination. not permitted to stop, although a passenger

And it may be assumed from the decision destined for such a station was directed by in Black v. Atlantic Coast Line R. Co. 82 an employee of the company to take that


train, and so, where a passenger, at the stopping place of the train, which was bedirection of an employee of the railroad yond his destination, and so action for company, boards a train which does not stop wrongful ejection will not lie. Whether or at his destination, and he is required to not, under the circumstances, an action leave at the nearest regular stopping place would lie for breach of contract of carriage, before reaching such place of destination, the court refused to decide. Allen v. Wilaction for wrongful ejection will not lie; mington & W. R. Co. 119 N. C. 710, 25 S. but in such case, if damage results, it must E. 787. be attributed to the misdirection. Sira v. If a passenger boards a train which does Wabash R. Co. 115 Mo. 127, 37 Am. St. not stop at her destination, having been diRep. 318, 21 S. W. 905.

rected by the gate-keeper and brakeman to So where, through the negligent direc- take that train, and she is ejected when tion of the employees of a railroad com- the train reaches a station at which it regupany, a passenger boards a train which does larly stops, the railroad company will be not stop at his destination, and is ejected liable in damages. Louisville & N. R. Co. at a regular stopping place of the train, v. Summers, 133 Ky. 684, 118 S. W. 926. such passenger, though rightfully ejected un- An action in such a case would, of course, der the rules of the company, has a right to be predicated on the negligence of the comsue the company for breach of contract pany's agent in directing the passenger to to carry him to his place of destination. take such a train, and not on the fact that or for the tort,—the ejection from the train. the conductor had no right to eject the pasChicago, B. & Q. R. Co. v. Spirk, 51 Neb. senger, the train being a through one, and 167, 70 N. W. 926, 2 Am. Neg. Rep. 400. not stopping at her destination.

And one who boards a train which does But in Distler v. Missouri P. R. Co. 163 not stop at his destination, though directed Mo. App. 674, 147 S. W. 518, it would seem to take such train by a servant of the com- that recovery in an action for wrongful pany, may be ejected by the conductor upon ejection by one who was ejected from a train refusal to alight at the first regular stop which did not stop at his destination was ping place of the train, and an action for permitted on the ground that there was a ejection will not lie. Turner v. McCook, 77 negligent misdirection by a servant of the Mo. App. 196. The court stated that where railroad company as to the proper train for a ticket holder has purchased a ticket for the passenger to take. As in the Turner passage, and through the negligent mistake Case, supra, the passenger in the instant or misdirection of a servant of the company, case purchased a ticket for a certain station whose duty it is to direct passengers, enters and was directed by the company's servant a train which, under the rules of the com- to enter one of the cars of the train at the pany, does not stop at the station named in station, and later, the conductor, having his ticket, he has no right to continue pas- ascertained his destination, informed him sage on that train after the conductor has that the train did not stop at such station, given him notice that the train does not stop and ejected him between stations. A judgat the station to which he seeks passage, ment for plaintiff, awarding both actual and and has requested him to leave the train, punitive damages, was affirmed, the puniand afforded him a reasonable opportunity tive damages being held to be warranted to do so; and if he then persists in re under the evidence that the conductor was maining, he is then wrongfully thereon, and abusive and discourteous, and his behavior the conductor, in the performance of his was such as to arouse the attention of the duty, may eject him if he acts in good faith other passengers on the train to what was and without malice, and uses no more force being said and done, and thus to bring the than is necessary for the purpose. If in passenger under suspicion as a wrongdoer. such case damage results, it must be

J. H. B. attributed to the negligent mistake or misdirection of the servant of the company. One who has boarded a train which does

MASSACHUSETTS SUPREME JUDI. not stop at his destination cannot recover

CIAL COURT. as for wrongful ejection upon his refusal to pay fare to the first stopping place or to

JAMES E. LEWIS get off when the train has stopped at a suitable place, although such person was informed by the conductor of a connecting line

GRACE E. LEWIS. or branch of the same railroad company that that train was the one which he should take (220 Mass. 364, 107 N. E. 970.) to reach his destination. Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608, Am. 'New trial communication between St. Rep. 780, 17 Pac. 54.

judge and jury in absence of counsel. And although one boards a train which A written answer to a written question does not stop at his destination, upon the

Note. advice of the conductor of another train,

Effect of judge communicating that if he boarded that train, having a

with jury not in open court. ticket for a certain place, the conductor This note is supplementary to the note would have to stop and let him off, yet he appended to State v. Murphy, 17 L.R.A. may be ejected by the conductor of the latter' (N.S.) 609. train upon refusal to pay fare to the first These notes include cases in which there




sent by a jury which has retired, to the to recover on an account annexed for goods judge, who is waiting in the lobby of the sold and money advanced to defendant. court to receive the verdict, without requir- Sustained. ing the attendance in court of the parties

The facts are stated in the opinion. and their counsel, is, although the answer is accompanied by a statement that the ques

Messrs. Ham, Frederick, & Yont, for tion and answer are immaterial, ground for

defendant: new trial, where the nature of the com

No communication should take place bemunication is never disclosed to the contend-tween the judge and the jury after the ing party, notwithstanding a statute requir- cause had been committed to them by the ing errors relating to pleading and pro- charge of the judge, unless in open court cedure to be disregarded which do not in and, where practicable, in the presence of juriously affect the substantial rights of the

counsel in the case. parties.

Sargent v. Roberts, i Pick. 337, 11 Am. (February 27, 1915.)

Dec. 185; O'Connor v. Guthrie, 11 Iowa,

80; Read v. Cambridge, 124 Mass. 567, 26 XCEPTIONS by defendant to rulings of Am. Rep. 690; Low v. Freeman, 117 Ind.

the Superior Court for Suffolk County | 341, 20 N. E. 242; Smith v. McMillen, 19 made during the trial of an action brought' Ind. 391; Coolman v. State, 163 Ind. 503,

some actual communication, oral or | But upon an appeal, reported in 102 Tex. written, between the judge and jury not 263, 20 L.R.A.(N.S.) 429, 115 S. W. 1163, in open court, and cases in which the judge 20 Ann. Cas. 137, the supreme court took entered the jury room, whether he actually notice of the fact that a statement apcommunicated with the jury or not; but pended to the bill of exceptions by the trial do not include any cases involving commu- court showed the fact that the court connications made in open court in the absence ferred with the foreman of the jury apart of, or without notice to, parties or counsel. from the rest of the jury, and not in open

In accordance with the general rule, it court, and reversed the judgment on that is held in the following cases to be error ground, saying that in deciding the question for the trial court to have any communica- it was not required to enter into a discustion with the jury not in open court. sion as to how the conference between the

Thus, it is error for which a judgment judge and the foreman would have affected will be reversed for a trial judge to hold the verdict, if at all. any communication with the jury in regard In Berst v. Moxom, 163 Mo. App. 123, 145 to the instructions in the case except in S. W. 857, where it appeared that the judge open court, and it is immaterial whether entered the jury room upon request of the the instructions given were right or wrong. jury, who could not agree, but declined to Mound City v. Mason, 262 III. 392, 104 X. give any cpinion in regard to their ques. E. 685.

tions, although he did give them an instrueIt was error for the trial judge to enter tion in writing that a verdict could be the room where the jury were deliberating, brought in by three fourths of the jury, and in the absence of accused and his coun- the judgment was reversed on the ground sel answer questions there propounded and that any communication in the jury room give them advice with respect to the law between the judge and jury in the absence on the case or the verdict to be returned of counsel, and without their consent, after by them, such action being not only a vio- the jury had retired to consider the issues, lation of the Criminal Code, which requires is reversible error. that when the jury desires to be informed Where the foreman of a jury had a comupon a point of law they should be brought munication with the judge after the jury into court and the information given by the had sealed their verdict, but, because of cir. court in the presence of, or after notice to, cumstances arising later, the jury, upon the accused and his counsel, but also calcu- agreement of both parties, retired to fur. lated to put the court in a position to be ther consider their verdict, a new trial was misjudged and its motive questioned. Bent properly granted. Dralle v. Reedsburg, 135 ler v. Com. 143 Ky. 503, 136 S. W. 896. Wis. 293, 115 N. W. 819.

In Texas Midland R. Co. v. Byrd, Tex. In Greely v. Weaver, Me. 5 Atl. Civ. App. 110 S. W. 199, the assignment 267, it was held to be error requiring a new of error was upon an alleged statement trial for the court, in response to a quesmade to the foreman of the jury by the tion sent to it by the jury after the court judge, which, if it had been made, would had adjourned for the day, and while they have had a tendency to coerce the jury were deliberating on their verdict, to send into arriving at a verdict, and the assign- to them a note reciting a rule of law alment was overruled on the ground that the ready given in the charge. evidence was not sufficient to warrant the The fact that the trial judge, without conclusion that the judge did make the the consent of appellant, communicated statement to the foreman. Apparently no with the jury during their deliberations objection was made on the ground that the upon a case, is ground for a new trial. Holjudge and the foreman held a private con- liday v. Sampson, 42 Tex. Civ. App. 364, versation apart from the jury after the jury 95 S. 11. 613. had retired to deliberate upon their verdict. A justice of the peace has no more right


72 N. E. 568; McBean v. State, 83 Wis. 206,, to have this effect, it must appear that the 53 N. W. 497; Watertown Bank & Loan misconduct was such as might have prejuCo. v. Mix, 51 N. Y. 558; Hurst v. Web- diced the defendant. The presiding justice ster Mfg. Co. 128 Wis. 342, 107 N. W. 666; | found as a fact that the defendant was not Abbott v. Hockenberger, 31 Misc. 587, 65 prejudiced, and that finding was conclu. N. Y. Supp. 566; Danes v. Pearson, 6 Ind. sive, unless the facts reported are inconApp. 465, 33 N. E. 976; State v. Murphy, sistent with it and show that it was erro17 N. D. 48, 17 L.R.A.(N.S.) 609, 115 N. neous in law. W. 84, 16 Ann. Cas. 1133; Havenor v. Com. v. Desmond, 141 Mass. 200, 5 N. E. State, 125 Wis. 444, 104 N. W. 116, 4 Ann. 856; Johnson v. Witt, 138 Mass. 79; Clapp Cas. 1052; State v. Wroth, 15 Wash. 621, v. Clapp, 137 Mass. 183; Munde v. Lambie, 47 Pac. 106; Kirk v. State, 14 Ohio, 511. 125 Mass. 367; Com. v. White, 147 Mass.

Messrs. Arthur F. Breed and Joseph G. 76, 16 N. E. 707; McCutchen v. Loggins, Wright, for plaintiff:

109 Ala. 457, 19 So. 810; Mahoney v. As to the written communication between Decker, 18 Hun, 365. the jury and the judge, the question is as It is impossible to ascertain that the to whether there was such misconduct as conduct of the court had any prejudicial to require the verdict to be set aside. But'effect upon the jury, and in the absence in a jury room while the jury is deliberato , accompanied by the sheriff, went to the ing than any other person, and his pres- door of the jury room and asked them if ence there is clearly error. Gibbons v. Van i they desired to be put to bed, or were likely Alstyne, 56 Hun, 639, 9 N. Y. Supp. 156. to agree on a verdict, when one of the

But, while no cases approve of the prac- jurors asked him a question concerning intice of private communication between structions, to which he gave an judge and jury, some courts refuse to dis- which did not amount to a recharge, but turb a verdict because of such communica- was equivalent to an instruction as to the tion when no prejudice could have resulted form of a verdict which the jury were aufrom such communication.

thorized to render, and within a few minThus, in Martin v. Martin, 76 Neb, 335, utes the judge informed counsel for defend124 Am. St. Rep. 815, 107 N. W. 580, 14 ants as to what had occurred, and no objecAnn. Cas. 511, the court recognized the gen- / tion was made at the time. It was held eral rule that all instructions to the jury that, even though the action of the judge should be delivered in open court, but said was an irregularity, it did not and could it did not mean to say that where, as often not have resulted in injury to the accused, happens, the court is engaged in a trial and the evidence of his guilt being strong when a request for further instructions is and clear, a judgment of conviction was presented, it cannot, by consent of the par- affirmed. ties, send its answer to the jury by the In Dishmaker v. Heck, 159 Wis. 572, 150 bailiff in charge, but that the record ought N. W. 951, where the jury were unable to to show that consent is given in order that decipher a word in the written form for a no controversy may the after arise; and special verdict given to them by the judge, where it did not appear whether an excep- and the foreman returned to the court tion taken by the plaintiff at the time such room, where another case was being tried, an instruction was sent to the jury was and asked the judge what the word was and meant to apply to the form of the instruc- was told that it was “punitive,” the court tion or to the manner in which it was given, said that, while no court had been more and it appeared in view of the special find- careful than it in insisting that all commuings of the jury that the action of the court nications between the court and jury should was without prejudice to the plaintiff, it be in open court and free from even a suswas held that any error committed by the picion of secrecy, it would be little less court in the manner of instructing the jury than absurd to hold that because the trial was immaterial.

judge correctly told a juryman what a In Glenn v. Hunt, 120 Mo. 330, 25 S. W. given word in the special verdict was and 181, where, after the cause had been argued what it meant, there should be a new trial. and submitted to the jury, the court, upon A statute which makes a communication written request of the jury, and against with a jury during its deliberations suffithe defendant's objections, sent to the room cient ground for a new trial, if the coman additional instruction, it was held that, munication is found to be material, is broad while the court committed error in sending enough to include a communication to the that communication to the jury, it was not jury by the trial judge, but where it apsuch prejudicial error as should reverse the pears that such a communication had no judgment, the advice asked by the jury not effect whatever upon the minds of the jury being in reference to any controverted fact in reaching their verdict, it will not be rewhich the jury was required to decide, and versible error. Whitaker v. Browning, the fact and the law communicated to the Tex. Civ. App. 155 S. W. 1197. jury by the judge both being undisputed. In Wood County v. Shinnew, 30 Ohio C.

In Miller v. State, 13 Ga. App. 440, 79 C. 158, where it appeared that after the S. E. 232, it appeared that, after the jury jury had retired for deliberation they asked had been out until late at night, the judge, I the court for further instructions, where

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