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Vol. II.)

ILLINOIS CENTRAL RAILROAD COMPANY V. JOHNSON.

(No. 16.

SUPREME COURT OF ILLINOIS.

(To appear in 67 Illinois.)

RAILROAD.-FREIGHT TRAIN.- REFUSAL TO CARRY PASSENGER.

DAMAGES.

ILLINOIS CENTRAL RAILROAD CO. v. JOHNSON.

A railroad company has the clear right to make a rule that no one shall be carried as a

passenger on its freight trains. But when it is in the habit of carrying passengers on such a train, and had its regular hour for departure posted in its office at the station, it will not be justified in refusing to carry a passenger from such station, or in putting

him off such train. Where a railroad company adopts a rule prohibiting passengers from being carried on its

trains, or on its freight trains, without the purchase of tickets, it must furnish convenient facilities to the public by keeping open the ticket office a reasonable time in advance of the hour fixed by its time-table for the departure of the train. Should it fail to do so, a person desiring to take passage will have the right to enter the car and

be carried to his place of destination, on payment of the regular fare to the conductor. Where a person, desiring to take passage upon a freight train which carried pasengers,

applied several times to procure a ticket, but could not get one for the reason that the office was closed, and he then got upon the train and tendered the conductor the regular fare, explaining to him his inability to procure a ticket, but the conductor stopped the train and put him off, not at any station or regular place for passengers to get off : Held, that the company was liable to such passenger in an action on the case for

damages. Where a passenger was put off the cars of a railroad company by the conductor, for the

reason that he had not procured a ticket at the station before getting aboard, and it appeared that the office at the station was closed, so that no ticket could be had; that the passenger so informed the conductor, and offered to pay the regular fare; that the place where the passenger was put off was not at any station or usual place for putting passengers off the train, and that this was done in the night-time, whereby the passenger was compelled to walk back: Held, that $200 damages were not excessive.

APPEAL from the circuit court of Macon County; the Hon. A. J. Gallagher, judge presiding.

This was an action on the case, by Eugene C. Johnson, against the Illinois Central Railroad Company, to recover damages for a refusal to carry him as a passenger, and for putting him off the train of the company at a place which was not a station or usual place for taking on and discharging passengers. The facts of the case are stated in the opinion of the court.

Messrs. Nelson & Roby, for the appellant.
Messrs. A. M. & A. H. Ayers, for the appellee.
Mr. Justice Scott delivered the opinion of the court...

The errors assigned, upon which the appellant seems to rely for a reversal of the judgment in this case, are, first, the court erred in giving instructions in behalf of appellee, and second, the damages found are excessive.

The action was brought to recover damages alleged to have been occasioned by being put off a freight train on appellant's road. Appellee was desirous of being carried from Champaign to Rantoul. The train on which he attempted to obtain passage was advertised to leave the former VOL. II.

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Vol. II.)

Illinois CENTRAL RAILROAD COMPANY v. Johnson.

(No. 10.

place at four o'clock and fifty minutes in the morning, and was made up at that station. Appellee, in company with Mr. Cunningham, applied two or three times at the company's office for tickets, but could get no answer, and consequently could get no tickets. At the hour for the train to depart the parties entered the caboose and took seats. Soon after the train moved out from the station, the conductor came in and demanded the tickets of the passengers. He was told by appellee and Cunningham they were unable to procure tickets, for the reason the office was closed; that they wanted to go to Rantoul, their business being urgent, and tendered the money for the usual fares. The conductor refused to receive the fare in money, but stopped the train and put appellee and Cunningham off some distance from the station, and they walked back.

The objections taken to the instructions given for appellee are all answered by the reasoning in the case of Chicago f Alton Railroad Co. v. Flagg, 43 Ill. 364, and it is not necessary to discuss them in detail.

It is insisted that appellant was not accustomed to carry passengers on the train on which appellee sought passage, and the principles of law announced in the instructions can have no application to the case. This objection is not founded in fact. The evidence does show that the company was in the habit of carrying passengers on this train. It was made up at Champaign station, and had its regular hours for departure, which were noted on the time-card posted in the office. The very fact that the conductor called for tickets and was willing that appellee should be carried if he had one, is very satisfactory evidence of the custom of the company to carry passengers. The company has the clear right to make a rule that no one shall be carried as a passenger on their freight trains, but it is not claimed it had adopted any such regulations in regard to the train in question. The conductor did not object to carrying appellee on the ground that he was not allowed to carry passengers at all, but simply because he had no ticket.

In Flagg's case, supra, it was held, that where the company requires tickets to be purchased at the station, it must furnish convenient facilities to the public by keeping open the office a reasonable time in advance of the hour fixed by the time-table for the departure of the train. Should it fail to do so, a person desiring to take passage would have the right to enter the car and be carried to his place of destination, on payment of the regular fare to the conductor. In this case the company did not keep its office open. Appellee was unable to procure a ticket. He had the clear right to enter the train, and on the payment or tender to the conductor of the regular fare, it was his privilege to be received as a passenger. The instructions given state the law substantially as it has been announced by this court in its former decisions, were applicable to the facts in the case, and were therefore proper. Illinois Central R. R. Co. v. Sutton, 53 Ill. 399.

Appellee was put off the train at a point other than a station. It was not far distant, it is true, but still it was not at a station, or any usual place for putting passengers off freight trains. That appellee was entitled to recover something, we do not entertain the slightest doubt. The jury found a verdict for $250. A remittitur of fifty dollars was entered, and the court rendered judgment for $200. This amount is claimed to be exVol. II.)

ORTWEIN v. THE COMMONWEALTH.

(No. 10.

cessive. We do not think so. Appellee had the clear right to be received as a passenger. The company only was in fault. His business was urgent, and this he explained to the conductor and was captiously told it made no difference. He was put off in the night-time and compelled to walk some distance back to the station.

The act of the company was an open and wilful defiance of the law, as it has been repeatedly declared by the decisions of this court. In Flagg's case, the circumstances were not more aggravated than in the case at bar, and a judgment for $100 was permitted to stand. It was the first of this class of cases, and the law had not been previously settled in this state.

The instructions given by the company to their conductors to put off passengers not holding tickets, who, in good faith, had endeavored to procure them, but could not do so on account of the neglect of its own agents, was known to the principal officers to be unlawful. If these corporations will not willingly obey the law in this regard, they must expect to be visited with exemplary damages for its infraction.

Perceiving no material error in the record, the judgment must be affirmed.

Judgment affirmed.

SUPREME COURT OF PENNSYLVANIA.

(To appear in 26 P. F. Smith.)

CRIMINAL LAW. - INSANITY IN MURDER CASES. - EVIDENCE TO ESTABLISH. — COMPETENCY OF JUROR WHO ENTERTAINS UNSETTLED OPINION.

ORTWEIN v. COMMONWEALTH.

1. Under sect. 66 of Act of 31st March, 1860 (Criminal Code), the jury, before finding

the fact of insanity specially, must be satisfied of it by the evidence. 2. A reasonable doubt of the fact of insanity in a criminal case is not a true basis for

the finding of it as a fact, and as a ground of acquittal. 3. The evidence to establish insanity as a defence in a criminal case must be satisfactory,

not merely donbtful. 4. A person charged with a crime must be judged to be a reasonable being, until a want

of reason positively appears. 5. To make a want of reason to appear, the evidence must be satisfactory, not merely

doubtful; nothing less than satisfaction can determine a reasonable mind to believe a

fact contrary to the course of nature. 6. Insanity, as a defence, must be so great as to have controlled the will and taken away

the freedom of moral action. 7. When the killing is admitted, and insanity is alleged as an excuse, the defendant must satisfy the jury that insanity actually existed at the time of the act; a doubt as

to the insanity will not justify the jury in acquitting. 8. Where a juror had formed his opinion in part from testimony taken before the coro

ner, as read in the newspapers, and part from rumor, but his opinion was so unfixed that he could hear and determine the case from evidence given on the trial uninflu

enced by previous impressions, he was not incompetent. 9. The inquiry as to the juror's incompetency from previous opinion is, whether his

opinion is a prejudgment with such fixedness and strength as would probably influence and control his judgment, or formed upon the same evidence as will be given on

the trial. 10 Evidence before a coroner has not the same weight as that given on the trial.

Vol. II.]

ORTWEIN v. THE COMMONWEALTH.

(No. 10

Alexarell, I don'ter formed ad, almost

ERNEST ORTWEIN, alias Mentzger, was indicted for murder at the June term, 1874, of the court of oyer and terminer of Alleghany County.

On the 16th of June, 1874, his trial commenced before Sterrett, P. J., and Stowe, J., of the court of common pleas of Alleghany County.

In empanelling the jurors the prisoner challenged a number of the jurors for cause; they were severally examined on their voir dire, as to whether they had formed or expressed an opinion as to the guilt or innocence of the prisoner. The examination of the jurors having been taken by question and answer, it is desirable to give it as taken.

Alexander McClure said in answer to the above question :-
A. Well, I don't know, for certain, that I ever expressed an opinion.
Q. Have you ever formed one ?
A. Well, from reports I had, almost, I suppose, come to a conclusion.

Q. Is that opinion based upon the reading of the testimony taken before the coroner's jury?

A. I read but very little.
Q. Did you read any of it?

A. I read a very little. I bought a paper and brought it home with me for that purpose ; on the way home in the wagon, I looked at it a little, but afterwards it got misplaced and I never could find it again. I heard a little of it read from the paper I got, but I did n't hear very much of it read.

Q. By the Court. Was the opinion you entertained formed from reading the testimony taken before the jury, or from outside testimony?

A. It was from that and rumor.
Q. Both together?

A. Yes, sir. I don't know that I would have come to any definite conclusion from either one separate from the other.

Q. Could you, with the opinion that you have formed, take your seat as a juror, and try the case under the law and the testimony, without being prejudiced or influenced by that opinion ?

A. Yes, sir; I believe I could.

Q. By the prisoner. Does the opinion that you formed from reading or hearing read a part of the testimony taken before the coroner, as . reported in the newspapers, at present exist in your mind ?

A. That is the conclusion I drawed from what I read. I only read a portion.

Q. Is that opinion existing in your mind now?
A. Well, I believe it does.

Q. Would it not then require some evidence in order to eradicate that opinion ; to remove it? | A. It would take further evidence than I read. Q. Would it require some evidence now to remove that opinion ? A. I suppose it would.

Q. Would you act upon that opinion as a juror, or, acting as a juror under the law and the evidence, would it have any effect in bringing you to a conclusion as to the guilt or innocence of the prisoner ?

A. Well, I don't know that it would.
Q. Do you know that it would not?
A. I believe it would not.

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Vol. II.]
ORTWEIN V. THE COMMONWEALTH.
TEALTH.

[No. 10. He was challenged for cause; the challenge was overruled, and a bill of exceptions sealed.

The prisoner challenged peremptorily.
William Douglas, in answer to the above question, said:-
A. Yes, sir; as far as newspaper reports are concerned.

Q. Have you read the report of the testimony taken before the coroner's jury as published in the newspapers ?

A. I did, sir.
The prisoner challenged for cause.

Q. By the Court. Is the opinion you formed or entertained one that would interfere with your rendering a verdict according to the law and testimony, uninfluenced by that opinion ?

A. No, sir.

Q. By the prisoner. You say you read the testimony taken at the coroner's inquest, as published in the newspapers ?

A. Yes, sir.

Q. The opinion you formed was a consequence of reading that testimony?

A. I was pretty much of one opinion.

Q. You mean you were of the same opinion before reading it as afterwards ?

A. Yes, sir.
Q. You still hold that same opinion?
A. Yes, sir.
Q. Would it require some evidence to remove that opinion ?
A. Yes, sir; it certainly would.

Q. By the Court. You state that it would require evidence to remove your opinion ?

A. Yes, sir.

Q. Would that opinion influence you in any degree in rendering a verdict in the case, if you took your seat as a juror, according to the law and the evidence ?

A. No, sir ; it would not.
Q. Were you at the coroner's inquest ?
A. No, sir.

Q. The reports you read were the newspaper reports of the proceedings before the coroner's jury?

A. Yes, sir.
The challenge was overruled, and a bill of exceptions sealed.
The prisoner challenged peremptorily.
H. Eaton in answer to the question said :-

A. In a measure I have. I read a great deal in the newspapers at the time, but I did not read the coroner's inquest.

Q. Does that opinion you say you formed partly remain with you now?

A. Yes, sir.
Q. Would it require evidence to remove that opinion ?
A. I must have something to remove that opinion.

Q. By the Court. Do you mean that, if you were to take your seat as a juror, the opinion you have would influence you in rendering á verdict ?

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