Barrett v. Market Street Railway Co.

Paterson, J. Action for damages for the forcible ejection of plaintiff from one of defendant’s cars. The. defense was, that the plaintiff had refused to pay his fare, and that therefore the defendant was justified in ejecting him. The trial court gave judgment for the plaintiff, and the defendant appeals upon the findings.

The 'material portions of the findings are as follows:—»

. “That while in said car as such passenger, and when said car was near the corner of Second and Market, streets, the conductor in charge of said car, on behalf of the defendant, did, in the course of his employment as such conductor, "demand of the plaintiff the payment of the sum of five cents, being the legal fare and cost of transportation on said car; that said plaintiff did not have in his possession any coin or currency of the exact value of five cents, or any coin of any smaller denomination than a five-dollar gold piece, lawful money of the United States, and plaintiff, in response to said demand of said conductor, offered said conductor a five-dollar gold piece, and told said conductor to take his, plaintiff's, fare out of said sum of five dollars; that the conductor, refused to accept said five-dollar gold piece, informing the plaintiff that he was unable to make change for said five-dollar gold' piece, and ihsisted upon the payment to him by the plaintiff of the exact sum of five cents, at the same time directing plaintiff if he did not produce and pay said sum of five cents to leave the car; that the plaihtiff informed the conductor that the five-dollar gold piece was- the smallest coin he had; that he was willing to pay his fare, but could not furnish the exact amount, and refused to leave the car upon the demand of the conductor; that thereupon the conductor stopped said car and called the driver to his assistance, and both of them thereupon seized the plaintiff, and against his protest,opposition, and struggles, forcibly ejected him from said car at the corner of said Second and Market streets, and [298]in so doing inflicted upon plaintiff various bruises and injuries.....

“And the court finds, from the foregoing facts alone, that the plaintiff did not refuse to pay fare for his transportation on said car, and did not insist upon, any right, or supposed right, to be transported free of charge, under any circumstances or upon any condition, and that plaintiff was not ejected or put out of said car for a refusal to pay his fare.

“And as a conclusion-of law, from the foregoing facts, the court finds that the plaintiff is entitled to judgment,” etc.