Brigham v. Southern Pacific Co.

GRAY, P. J.

The plaintiff had a verdict for damages in the sum of $2,000 for having been wrongfully ejected from defendant’s train. On defendant’s motion for a new trial, the damages were reduced to $1,000, and on acceptance by plaintiff the new trial was denied. The appeal is by defendant from the order denying a new trial.

The plaintiff in his complaint says that for a long time prior to his injury he had been engaged in mining, mercantile, and brokerage business. Prom his testimony it appears that he was a “traveling man” by occupation, and had, a little less than three months previous to his alleged injury, purchased in New York a first-class round-trip ticket from that point to San Francisco and Los Angeles and return; that he had come out here on that ticket, and on his way had worked the towns from Salt Lake City to San Francisco and down to Los Angeles, “working up trade for a friend of his in iron beds, and establishing agencies for their manufacture on the Western coast.” He had been in Los Angeles some six days, and during that time, according to his own testimony, he had appeared at one or two ticket broker agencies and inquired what unused tickets were selling at, with a view of possibly selling the ticket upon which he was riding at the time he was ejected from the train. Witnesses of the defendant testified that a man other than the plaintiff had brought the ticket in question to the ticket broker’s office twice, once before it was validated and again after it was validated. One of these witnesses was the ticket broker himself, and his testimony was very positive to the point that it was the same ticket and that the man who offered it for sale each time was not the plaintiff. He did not sell the ticket, however, and on the twenty-third day of September, 1902, plaintiff boarded an overland train of defendant with said ticket in his possession, intending to go east thereon, as he says, to accept a position with a business concern in Boston, Massachusetts, at $35 per week. At that time plaintiff was about fifty-seven years of age, was recovering from a recent illness, and had been an invalid for twenty years immediately

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previous thereto. Soon after the train left Los Angeles the plaintiff encountered the train agent, named M. E. Clute, who demanded his ticket and received into his hands the ticket in question. The train agent, having, as he says, “a bulletin of a ticket of Perry Brigham” (the plaintiff’s name), at once set to work to ascertain whether the plaintiff was the original purchaser of the ticket. The plaintiff, in consideration of the reduced rate at which the ticket was sold, had signed an agreement indorsed upon the ticket, as follows: “The holder will identify himself or herself as the original purchaser of this ticket by writing his name or by other means if necessary, when required by conductors or agent.” He had. also agreed that, “unless all the conditions of this ticket are fully complied with, it shall be void.” He also signed the following: “To prevent imposition, the holder must identify himself as the original purchaser of this ticket to the satisfaction of any conductor or agent, by signature and otherwise, whenever requested.” Under this agreement the plaintiff was called upon by the agent to write his name upon a pad, with which request he seems to have complied cheerfully and so wrote his name twice. The agent seemed not satisfied with these signatures and proceeded to ask plaintiff if he knew anyone on the train, to which a negative reply was given. Some other questions followed, which are not specifically stated in plaintiff’s evidence, and then the agent asked the plaintiff whether he crossed the Missouri river at Omaha or St. Louis on his way out here. To this the plaintiff replied that he did not know, as he was asleep at the time. The agent thereupon told the plaintiff that the ticket was not his, and directed plaintiff to pay his fare or get off at the next station. Afterwards, on arrival at Burbank, some eleven miles out of Los Angeles, at 1 P. M., by the threats of the conductor, to forcibly eject him, the plaintiff was induced to leave the train, the conductor carrying his baggage and placing it near the depot. The plaintiff then stated to the depot agent that he had been put off the train, and asked about when he could get a train back to Los Angeles, and also where he could get something to eat. The agent advised him as to these matters, and he then went to a restaurant and procured and consumed some crackers and a bottle of beer. Some time after he alighted from the train—the evidence being conflict