Eylenfeldt v. United Railroads

THE COURT.

This appeal is taken by the defendant from a judgment of the superior court of the city and county of San Francisco sitting without a jury, and from an order of said court denying defendant’s motion for a new trial.

The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff while being ejected from one of defendant’s street-cars.

The learned trial court awarded plaintiff judgment in the sum of two thousand dollars, but this amount was later reduced to one thousand six hundred and fifty dollars.

The facts are as follows: Plaintiff and one Frank Clem, a friend, boarded a street-car of the defendant at Third and Mission streets in San Francisco. They sat together on the front platform. When the car had proceeded a block the conductor appeared to collect fares. Clem, who was nearer the conductor than the plaintiff, handed the conductor a ten cent piece, and the latter returned five cents in change. He then asked the plaintiff for his fare, whereupon plaintiff handed him two nickels and said “Two.” The conductor registered two fares and turned away, when plaintiff, learning that Clem had paid his own fare, demanded the return of five cents. The request was repeated several times but was declined by the conductor. In the discussion which then arose the conductor said to plaintiff, “Why did you give me two nickels . . . ? I cannot keep a record of such things as that.” A little later and in answer to another demand by plaintiff, the conductor said, “You have got no change coming. You paid two fares with two nickels, and you gave me

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two nickels. I considered that you intended to pay two fares.” Still later, when the conductor reappeared on the front platform, the plaintiff again demanded the return of his nickel. The conductor made a motion as though about to comply with the request, but upon the plaintiff holding out his hand to receive the money the conductor grasped it, and ejected him forcibly and violently from the car, causing the injuries set forth in the complaint.

The judgment in the case was originally for the sum of two thousand dollars. Subsequently the defendant made a motion for a new trial, which the court denied upon condition that the plaintiff would within ten days from the date thereof remit the sum of three hundred and fifty dollars from the amount of the judgment, which plaintiff did.