#### W. T. MOTT v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 5 November, 1913.)

Carriers of Passengers — Wrongful Ejection — Negligence.

In this action against a railroad company for wrongfully ejecting the plaintiff from the train, there was- conflicting evidence, and in behalf of the plaintiff that while'asleep on the train he was carried by his destination to which he had purchased a ticket, and at his insistence, the conductor carried him to the next station, where, changing his destination for his home beyond, he procured a ticket to that place from the railroad agent, again boarded the train and the conductor took up his ticket. Thereafter the conductor insisted that he would retain the ticket as a part payment for his.fare from his original destination to the place he had bought his second ticket, and demanded a cash fare from the latter place to his then destination. Upon his refusal to pay the cash fare, he was put off the train át a place where there was no station or people living: Held,,' (1) A motion as of nonsuit upon the evidence was properly refused; (2) Under a correct instruction, upon the evidence, the verdict in this case established as a fact that the plaintiff was wrongfully ejected from the train, after the conductor had accepted and retained his

■ ticket, at a place forbidden by statute, and actionable negligence has been found. ' •

CLARK, C. J., concurring.

Appeal by defendant from Ferguson, J., at April Term, 1913, of Columbus.

This is an action to recover damages for tbe wrongful ejection of tbe plaintiff from tbe defendant’s train.

According to tbe plaintiff’s evidence, he bought a ticket from tbe defendant’s agent at ‘Wilmington, N. 0., on 20 April, 1905, for bis passage from Wilmington to Farmers, N. C., on defendant’s road; that be boarded tbe train at Wilmington on that date, and before be reached Farmers be went to sleep and did not get off tbe train there, because be was asleep; that be bad on that day been discharged from tbe hospitalj and took tbe train to go to bis father’s, who lived at Farmers. After tbe .train passed Farmers tbe conductor came to him about tbe time tbe train reached Hallsboro station and said: “Your ticket *368read Farmers. Why didn’t yon get off there?” That be told the conductor be was asleep and did not know wben be reached Farmers; conductor told plaintiff that be would have to pay bis fare or get off the train; the plaintiff told the conductor: “He guessed be would have to carry him until be met the next train and bring him back to Farmers.” When the train reached Wbiteville, plaintiff got off and bought a ticket from Wbite-ville to Cerro Gordo; got back on train to go to Cerro Gordo, where be lived. After the plaintiff boarded the train, the conductor came through to take up tickets. Plaintiff gave conductor bis ticket bought at Wbiteville; conductor punched it and put it in bis pocket. Conductor came back and said: “Now, if you don’t pay your fare from Farmers to Wbiteville, I will put you off the train.” The plaintiff refused to pay fare from-Farmers to Wbiteville; conductor then said be would keep ticket for a part of fare from Farmers to Wbiteville; conductor bad train stopped and put plaintiff off train about 3% "miles from Wbiteville, where there were no bouses and no people living, and no depot or station. Plaintiff asked conductor to let him go in the baggage car and get bis bicycle in order that be might not be forced to walk to the next station, which the conductor refused to do. Plaintiff bad to walk from where be was put off the train to Chadbourn, a distance of 3% miles. The plaintiff came to Wbiteville the next day and went to the railroad agent and asked him if be bad record.of the ticket be bought the day before. It is 14 miles from Wbiteville to Cerro Gordo. Plaintiff was not drunk, but bad taken a drink. Plaintiff was the only witness offered in bis own behalf. At the close of the plaintiff’s evidence the defendant moved under section 539 of the Revisal of 1905 for judgment as in case of nonsuit. Motion overruled. Defendant excepted.

His Honor charged the jury, among other things: “If the jury fin'd from the greater weight of the evidence that the plaintiff, after purchasing this ticket at Wbiteville, got back on the same train at Wbiteville and gave the conductor this ticket for bis passage on from Wbiteville to Cerro Gordo, and the conductor took the ticket, and then demanded of the plaintiff bis *369fare from Farmers to Whiteville, and the .conductor stopped the train and put plaintiff off because he refused to pay his fare from Farmers to Whiteville, then the defendant wrong-' fully ejected the plaintiff from his train, and you should answer the first issue ‘Yes.’ ” Defendant excepted.

There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

Jackson Greer and Lewis & Lyon for plaintiff.

George B. Elliott, A. G. Ghalmers, Davis & Davis, and Schul-ken, Toon & Schulken for defendant.

Per Curiam.

There is ample evidence to sustain the plaintiff’s cause of action, and we find no error in the trial.

The verdict establishes the fact that the plaintiff was ejected from the train at a place forbidden by statute, and after the conductor had accepted and retained his ticket, and upon either ground the judgment should be affirmed.

No error.

Clark, C. J.,

concurring: The complaint alleges that on 20 April, 1905, the plaintiff bought a ticket at Whiteville for Cerro Gordo, and was 'put off the train halfway between Whiteville and Chadbourn, at a place where there were no houses or people living nearby and which was not a usual stopping place; that he had a bicycle in the baggage coach, which he asked to get, that he might ride to the next station, 3% miles off; that this was refused, and he had to walk to said station, where he got a conveyance to take him home, to Cerro Gordo. These allegations were not contradicted by any evidence. The defendant relied on the defense set up in the answer, that the plaintiff had bought a ticket that day at Wilmington, on the same train, to Farmers, 14 miles from Wilmington; that he did not get off at Farmers, and the conductor permitted him to go on 32 miles further to Whiteville, where he got off and purchased the ticket to Cerro Gordo; that after the train left Whiteville the conductor demanded the fare from Farmers to 'Whiteville, and being refused, he put the plaintiff off,, stopping the train to do so.

*370Tbe plaintiff's evidence is tbat wben be got to Farmers be was asleep, but be admits tbat be was drinking some, and left a quart of liquor on tbe train wben be was put off. He says tbat tbe conductor carried bim on to Wbiteville because be insisted be should be carried on to meet tbe next train going back to Farmers. He further testified tbat tbe conductor took up bis ticket from Wbiteville to Cerro Gordo, punched it and put it in bis pocket, and then, after going a few feet, returned and told bim tbat be must pay tbe fare from Farmers to Wbiteville or be would put bim off; tbat be bad no money to do this, and tbe conductor put bim off. Tbe conductor says tbat be" did not take up' tbe ticket, but tbat be demanded full pay from Farmers to Wbiteville, and put bim off because it was not paid. Tbe conductor says tbat be first discovered tbat tbe plaintiff bad overpassed bis station at Hallsboro, which was 7 miles west of Farmers; but tbat be carried bim on to Wbiteville and told bim to get off there.

Tbe court charged tbe jury tbat if “tbe plaintiff got off tbe train and bought a ticket of defendant's agent at Wbiteville for passage to Cerro Gordo, tbat this was a new contract which-entitled tbe plaintiff to travel on defendant’s train to Cerro Gordo, and tbat if tbe jury should find from tbe greater weight of evidence that the conductor took up this ticket and then afterwards demanded of tbe plaintiff bis fare from Farmers to Wbiteville, and on bis failure to pay tbe same tbe conductor stopped tbe train and ejected tbe plaintiff, tbe jury should answer tbe first issue “Yes.” This seems to be tbe only controverted fact, and tbe jury responded “Yes.”

Tbe defendant requires payment of fare-in advance. Whether tbe plaintiff passed tbe station at Farmers because be was asleep, as be says, or because be was drunk or shamming, a.) tbe defendant contends, wben tbe conductor ascertained at Halls-boro, the' next station, as be says be did, tbat tbe plaintiff was still on tbe train, it was bis duty then and there to require bim to leave, and this controversy would not have arisen. Tbat be permitted tbe plaintiff to ride to .Wbiteville, 32 miles beyond Farmers, constituted a debt from plaintiff to tbe company, un*371less, as tbe plaintiff seems to contend, tbis was done because proper notice was not given at Farmers, and tbe conductor allowed bim to come on to meet tbe train going back to Farmers.

Tbe defendant rélies upon Pickens v. R. R., 104 N. C., 312. In tbat case tbe Court beld tbat wben a passenger refuses to pay bis fare and tbe conductor is forced to stop tbe train, at a station where it would otherwise not have stopped regularly, thus causing delay, tbe conductor may refuse tbe tender of tbe fare unless it is made before tbe passenger puts bim to tbe trouble of stopping. Tbe Court then adds: “Wben tbe passenger gets off at a regular depot and gets a ticket, tbis constitutes a new contract, and will entitle bim to passage — certainly if be tenders tbe money due for a passage up to tbat point; and according to some authorities without such tender.” Tbe defendant quotes Manning v. R. R., 16 L. R. A., 55, where tbe Cpurt beld tbat tbe conductor was not required to accept tbe ticket unless tbe passenger tendered tbe back faré. On tbe contrary, in R. R. v. Bryan, 90 Ill., 133, tbe Court beld: “If tbe company could debar appellee from traveling on tbat trip for such reason, it could do so on any subsequent trip.” But we do not need to pass on tbis point, in tbis case, for tbe jury find tbat tbe conductor aecfepted tbe ticket.

Tbe train was not stopped at WTiiteville to put tbe plaintiff off, as in tbe Pickens case. On tbe contrary, be got off wben tbe train stopped at tbe regular station, and bought tbe ticket which entitled bim to be carried to Cerro G-ordo,- and tbe jury find tbat tbe conductor accepted tbe ticket. He. was rightfully on the train, and hence bis ejectment was wrongful.

Tbe ejectment was also wrongful, if it bad otherwise been rightful, because tbe plaintiff was put off (bis bicycle which was in tbe baggage car being, also refused bim) at a place which was not a “usual stopping place, nor near any dwelling-house.” Tbis is forbidden by Revisal, 2629. These facts are alleged in tbe complaint, and tbe testimony of tbe plaintiff to tbat effect is not controverted.

*372Tbe Constitution, Art. IY, sec. 8, gives this Court “general supervision and control over the proceedings of the inferior courts.” We should not, therefore, pass over without notice the fact that it appears in this record that the occurrence, which is the foundation of this action, took place 20 April, 1905, and though the summons was issued 9 August, 1905, this appeal comes up from a trial in April, 1913, a delay of eight years. Such delays bring reproach upon the administration of justice, costs accumulate, and the memory of witnesses becomes dim.' We recently had an appeal from that section of the State which had been pending, fifteen years, but in that instance there'had been four trials. So far as the record shows, this case has remained on' docket without action and accumulating costs for eight years. Judges of the trial courts should not permit causes to remain on docket, unacted on, for an inexcusable length of time. They should require causes to be tried or dismissed, unless there is good cause, which cannot exist for such an unreasonable length'.of time.