February 17, 1917. The opinion of the Court was delivered by This is an action for actual and punitive damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendants, in attempting to eject him, with force and violence, from the train upon which he was riding as a passenger, after he had tendered to the conductor the amount of fare allowed by law. The defendants, in justification of their acts, pleaded that the amount of fare tendered was insufficient, and that only such force was used as was necessary to eject the plaintiff from the train. The facts will more fully appear, by reference to the complaint and answer, which will be reported, except the formal parts thereof. The defendants made a motion for a nonsuit, also for the direction of a verdict; but both motions were refused. The jury rendered a verdict in favor of the plaintiff, against the Atlantic Coast Line Railroad Company, for $5,000; and it made a motion for a new trial, whereupon the Court ordered that a new trial be granted, unless the plaintiff would remit upon the record $2,500 of the verdict, which remission was accordingly made. *Page 446
The first question that will be considered is whether there was any testimony tending to show that the plaintiff was denied a reasonable time, within which to purchase a ticket, by reason of the fact that the ticket office was closed.
The regular time for opening the ticket office was 12:05 o'clock; the train was scheduled to arrive at 12:33 o'clock; on the day in question, the train was delayed and failed to arrive until 12:53 o'clock. The plaintiff testified that he went to the ticket office to buy a ticket, about 35 minutes before the train actually arrived, and that the ticket office was then closed; that the bulletin showed the train was 20 minutes late, and he then had knowledge of such fact; that he returned to his store, which was near by, and did not go again to the station until the train was approaching; and that it was too late to buy a ticket. The plaintiff did not introduce any testimony whatever to show that the ticket office remained closed during any part of the time after he returned to his store and before the arrival of the train.
It is true there was testimony tending to show that the plaintiff went to the ticket office about 35 minutes before the train actually arrived, and that the office was then closed; but this did not tend to show that it remained closed thereafter until the train arrived; and the only reasonable inference from the testimony is that the failure of the plaintiff to buy a ticket was not the direct and proximate result of a wrongful act on the part of the railroad company, but because he did not use due diligence.
The motion for nonsuit should have been granted, and the judgment is, accordingly, reversed. *Page 447