Defamed on a Train: Conductors Behaving Badly, 0617 COBJ, Vol. 46 No. 6 Pg. 53

AuthorFrank Gibbard, J.

46 Colo.Law. 53

Defamed on a Train: Conductors Behaving Badly

Vol. 46, No. 6 [Page 53]

The Colorado Lawyer

June, 2017

Historical Perspectives

Frank Gibbard, J.

Defamed on a Train: Conductors Behaving Badly

Recently, 69-year-old Vietnamese-American David Dao made the news by being forcibly removed from an airplane. Security reportedly took him off the plane after he was “bumped” from his flight but refused to vacate his seat. Cell phone footage showing Dao being dragged down the aisle created an Internet sensation. His attorney initially announced that a lawsuit was likely,1 but it was later reported that a settlement had been reached.2

In Colorado’s early days there was no passenger airline service. But there were altercations between railroad and tramway employees and their passengers. Some of these incidents led to litigation. The facts of these encounters are preserved in a number of reported Colorado decisions.

“Thank You for Not Smoking”

Several competing streetcar lines crisscrossed the streets of early Denver. Some of the lines relied on horses to pull the cars, others used underground cables, and still others were powered by electricity. When the Denver Tramway (later known as the Denver Tramway Company) (Company) was formed on May 4, 1886, the Company sought to construct an electric line, but hedged its bets. Its articles of incorporation specified that its object was to “conduct and operate electric, cable, and street railways using ‘any motive power.’”3 The Company’s incorporators were concerned that electric-powered trams might not prove commercially feasible.4

After an initial, failed electrical line, the Company conducted operations with horses, mules, and cable power. Then came a successful lawsuit against the City of Denver involving the construction of the Company’s electric towers. With that issue resolved, the Company finally began operating a successful electrically powered network.5 This network included the “Berkeley Electric Line” between the towns of Highlands and North Denver.6

In December 1891, passenger James Reed boarded a car on the Berkeley Electric Line near the junction of Ashland Street and Gallup Avenue. His brother was with him. Reed had paid his fare and w as carrying a transfer ticket. He was also clenching a partly smoked but unlit cigar in his mouth. According to the Colorado Court of Appeals, it was this cigar, “with [Reed’s] subsequent conduct, [that] gave rise to the difficulty.”[7]

The car was full that day, and there were ladies present. The conductor, a man named Ashton, came down the aisle collecting tickets. He spotted Reed’s cigar, and notified him that smoking was not allowed on the tram. Reed’s response, while not abusive, was not exactly polite. The Court of Appeals noted sardonically that the language he used “did not transcend the limits which are usually conceded to be the privilege of one of the kings of our country.”8

The conductor, however, did not appreciate Reed’s royal tone. He repeated his command to him to stop smoking. Reed’s brother prevailed on him to humor the conductor. Reed took the cigar from his mouth and either put it in his pocket or threw it to the floor.

The whole incident might have ended there, but Reed was in no mood to back down. “[P]robably in a slight spirit of bravado,” he pulled out his pipe, filled it, and announced that he was going to the back platform to have a smoke.9 He then reached into his vest pocket, apparently fishing for a match. For Conductor Ashton, that was the last straw.

The conductor grabbed Reed by the coat and rushed him to the back platform. A fight ensued between the two men. Initially, the conductor got the better of Reed, and threw him off the car. But Reed ran until he caught up to the tram. He tried to get back on.

The conductor and the “motoneer,” a man named Brooks, tried to keep Reed from reboarding the tram. Reed’s brother joined the tussle. After that, “the thing resulted in a sort of free, scrambling, running fight.”10

The conductor escalated matters by grabbing the switch bar, “an iron rod, three or four feet long.”11 He began hitting Reed with it. Reed then pulled out a jackknife and started swinging at the conductor, cutting him.12 Finally, the conductor managed to shove Reed off the tram for a second time, onto the ground. Apparently, the incident ended there.

When the Company’s foreman was notified of what happened, he refused to fire the conductor, who “was [still] running a car at the time of the trial.”13 Reed sued the Company in Arapahoe County district court, and a jury awarded him $1,000. The Company appealed to the Colorado Court of Appeals.

The Company first argued that it was not liable for its conductor’s actions because the conductor had acted in a quasi-police role as “a conservator of the peace” and not merely as a Company employee.14 The Court rejected this argument, stating it was “not ready to concede that the railway company can escape a liability for the acts of its servants because of any duty which that employe[e] may owe to the public, and because he is empowered, in the discharge of that duty, and in the protection of his passengers, to preserve the peace.”15

The Company next argued that the jury should have been instructed that it was Reed’s burden to prove that “he was riding peacefully and quietly and, without any cause or justification, was assaulted and ejected from the car.”16 The Court held the trial court did not err by omitting this instruction. The point was already adequately covered by instructions that told the jury that the Company “had the right to make all needful rules and regulations for the government of their cars, and the passengers were bound to obey them,” and that “smoking, the use of obscene and abusive language, or language which would tend to provoke a conflict with the conductor, would justify the use of force in putting the offending passenger off, and, if they found any of these facts, their verdict must be for the defendant.”17 The Court also upheld the adequacy of the instructions in general.

The parties devoted a significant amount of their briefing to the issue of whether a...

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