Atlantic Monthly—May, 1873

IN the Atlantic Monthly for December last, I told the story of The Fight of a Man with a Railroad; and related how, while travelling on the New York and New Haven Railroad, from New York to New Haven, tendered in payment for my passage a coupon-ticket marked, "Good from New Haven to New York," and was dragged from the train because I refused to pay my fare in any other form, and subjected to severe bodily injuries. The facts of this case are so familiar to the public that they need not be recapitulated here. The sequel of the contest—a suit for damages which, after four trials, resulted in a verdict of $3,500 in my favor is also well known. But some interesting and characteristic facts of the legal struggle still remain to be told; and by way of preface, it should be stated that my suit against the New York and New Haven Railroad Company was an action for damages for physical injuries sustained by me at the hands of its employees; not for its refusal to receive the ticket which I offered, and which I claimed was a legal and sufficient tender. I believed, and still believe, that if I pay for seventy-four miles of transportation on a railroad, I am entitled to such transportation on presentation of the evidence of my payment in the form of a ticket, at whichever end of the route I claim my due. But the basis of my suit was not the denial of my rights as a traveller. I sued the New York and New Haven Railroad Company, demanding damages for its wrongful act in beating and maiming me,—for an assault, in fact. I brought the suit in a Massachusetts court, first, because the superintendent of the New York and New Haven Railroad had said that, if I wished to test the case, "he would give me all the law I wanted, and would show me that the laws in Connecticut were different from those where I came from"; secondly, because most of the witnesses on my side were residents of Boston and vicinity, and could attend court in that city without much inconvenience; and thirdly, because I believed that the Massachusetts courts represented the highest type of judicial purity.

On the day of the first trial, I entered the court-room laboring under the agitation natural to the novice in legal contests, and worn with the labors of preparation. When the examination of witnesses was begun, I was first called to the stand. I was required, as is the custom, in direct examination, to tell who I was, where I lived, what my business was; and, these preliminary questions having been answered, to give a full history of the collision between myself and the railroad authorities. What was said and what was done I was permitted to tell, under constant interruptions from the counsel for the railroad, with, "Your Honor, I object!" and thanks to these interruptions, and to the slow pen of the judge, which lagged in note-taking and had to be waited for, I gave, instead of the concise, straightforward, and symmetrical account which I intended to give, confused and piecemeal sketches, which did no justice to my case before the jury. I was wholly unable to show the animus of my antagonists,—the contemptuous insolence which characterized their treatment of me in the earliest stages of the affair, and the reckless brutality which marked its catastrophe. I was allowed to tell the jury that I was ejected from the train and received bodily harm: the law recognizes the fact of an ejection; but it ignores the fact that the victim has "senses, affections, passions," and that the insult was put upon him in the presence of a car full of ladies and gentlemen.

The hasty retrospect of my evidence which I involuntarily made gave me no courage for the next and severer ordeal,—the cross-examination. The first questions of the counsel for the corporation were gentle, soothing, and seductive; but, finding that I refused the hidden pitfalls into which he would fain lead me, he changed his method, and strove to make me exhibit myself as a "common travelling agent," who had deliberately plotted to swindle the railroad company by trumping up a claim for damages for a pretended injury. He interrogated me as to the particulars of my physical discomforts: on what days did I suffer pain from my injury? at what hours of the day? Did the weather affect my state of health? Then he required me to consider what a mean, contemptible fellow I was, to try to save two dollars and a quarter by using an old ticket. Then he demanded, to know why need I be such a "rough," and get into that disgraceful quarrel, disturbing the other passengers, assaulting the railroad officials, and making them leave their business and come all the way to Boston, when I might have paid my fare, and every thing would have been smooth?

On another trial the lawyer who conducted the case in behalf of the railroad company thundered out this command: "Now, sir, look upon the jury and tell them why you broke the rules of that road,—why you attempted to use that ticket! A man of your age and your experience in travelling must have known better. What made you think you could do it?" A bush followed this indignant outburst. Every eye in the courtroom was fixed upon me; the spectators straightened themselves in their seats to listen; the reporters lifted their heads, and fingered their pencils nervously; the lawyers within the bar winked at each other significantly; and the presiding judge bent forward in an attitude of grave expectation.

My answer was deliberate, for I had outgrown my original nervousness, and was hardened to the asperities of judicial inquisition: "On general principles, when I pay a dollar for a thing, I am entitled to the equivalent of that dollar, whether I buy a railroad ticket or potatoes."

"Ye-e-s," rejoined the lawyer, slowly, and with a sneer in every word, "and when you buy potatoes, you think you can take it out in sugar or tea, if you prefer." He had made a good point, he thought, and he cast about the room a look inviting congratulation.

"No," I said; "I do not think I can take it out in sugar or tea. But I think, if I buy a barrel of potatoes, it's nobody's business but my own whether I take the head out of the barrel and eat through that way, or tip it the other end up, and go through that way!"

For once I had the whole court with me in a laugh, in which judge, jury, lawyers, and spectators took eager part; and my inquisitor dashed his papers on the table, and dropped into his seat.

During the last trial I had testified that I knew tickets had been used "backwards" on the road, and I believed such usage amounted to a custom. My tormentor asked why I did not bring witnesses to prove such a custom. I replied, that we did introduce a witness for that purpose, but the defendant's counsel refused to permit him to testify, declaring that the custom of the road had nothing to do with the case; only the rule of the road was to be considered. The counsel denied this, and affirmed that be would not have objected to such testimony, if we had been able to produce it. A gentleman sitting among the spectators rose and whispered to my lawyer; and as soon as I left the witness-stand, he was called and sworn, the opposing counsel watching the proceeding with undisguised curiosity. "Mr. Witness," asked my lawyer, "you have travelled a good deal on the New York and New Haven Railroad, have you not?" "Yes, sir." "State whether or not you ever had any tickets to go in the reverse direction, and how they were marked."

Before the witness could answer, the counsel for the railroad sprang up and vehemently protested against the introduction of the evidence. The judge evidently did not comprehend the situation, and turned an inquiring look upon my lawyer, who answered it by saying, "Your Honor, the defendants have asked me why we did not call witnesses to prove the custom of using tickets 'backward,' and said that they should not object if we did so. Now we have put this gentleman on the stand to show that he had such tickets—" "Yes, and used them too," interrupted the witness. "Stop, sir!" cried the judge, "you are not to testify until you are told to do so." But the caution was too late; the mischief was done; and again all present, appreciating the humor of this breach of legal etiquette, united in a hearty laugh. It was plainly unnecessary to pursue the examination of this witness further, and he was permitted to stand aside.

The other witnesses for the plaintiff, ladies and gentlemen who were in the car at the time of my ejection, gave their evidence on each trial, clearly and impressively, corroborating my own in all material points, and resisting successfully the diligent efforts of the opposing counsel to lead them into self-contradiction and confusion. They, too, were badgered and brow-beaten, as I had been; and their plight in the grasp of the cross-examining lawyer, though not edifying, was instructive in so far as it proved that the law is no respecter of persons. All the evidence 'for the plaintiff having been put in, the defendants' counsel opened their case in a brief speech, in which he quietly assumed, and seemed to take the jury into partnership in the assumption, that I had deliberately laid a plan to cheat the railroad company, and coolly stigmatized my suit for redress as a "fraud." He then introduced his witnesses,—"the honest, hard-working men who had been styled 'roughs' by the other side," and whose advent was now witnessed by the spectators with ill-concealed amusement. The contrast, in fact, between the witnesses for the two sides of the case was too glaring to be ignored,

The first honest witness was as prompt as a well-drilled recruit. He described the incidents of my ejection: the conductor called upon him and some of the other "boys" to take a man out of the car; they attempted to carry out his order quietly, but the man refused to go; therefore they laid gentle bands on him, whereupon the man kicked and struck and bit, and he (the witness) had to take hold of the man's hands to restrain his violence. He swore positively that it took six men to move the man. In answer to an inviting question, he eagerly testified that he saw Mr. Coleman bite one of the boys on the arm,—right through the woollen garment that the man wore. The story was clear, concise, and told with an air of confidence that was quite impressive. "Mr. Witness," said my lawyer, beginning the cross-examination, "you said just now that you saw Mr. Coleman bite one of the men?" "Yes, sir; on the arm. "Which arm?" The witness hesitated; he was well prepared in generalities, but not in details. Presently be answered, "The left arm." "How many men had hold of Mr. Coleman at this time? " One man was on his left side and another on his right, others had him by his legs, and I was in front." "These men were abreast of Mr. Coleman, taking him out squarely through the car, were they?" "Yes sir." "Will you swear to that positively?" "Yes, sir," said the witness, resolutely. "Careful, now; are you sure of that?" Yes, sir; I am sure of it." "On which side of Mr. Coleman was the man who was bitten?" Again the witness hesitated, and his face, hitherto calm, grew flushed and anxious. But he answered at last, "The left side, sir." "Will you swear positively to that also?" "Yes, sir; I swear positively to it." "Now, sir," resumed the lawyer, "do you not know that a man of Mr. Coleman's breadth in that narrow car aisle would completely fill it, so that neither two men nor one could stand at his side, as you swear they did?" Flustered, but not daunted, the witness explained, "The men were a little back of Mr. Coleman"; and witness quitted the stand, leaving the court to meditate on the strange spectacle of a man curving his giraffe-like neck, and fastening his teeth in the left arm of a man who stood on his left side, and a "little back of him!"

Several other honest witnesses gave similar testimony as to the biting, and as to the violent behavior of the plaintiff, and the gentle but firm deportment of the railroadmen; these latter struck no blows, but several were delivered by the plaintiff. The harmony of the witnesses was beautiful. They seemed to have beheld the scenes which they described with a single eye: as to the biting, the arm bitten, and the position of the biter, their agreement was perfect. At this stage of the proceedings a recess was taken. On the reassembling of the court, other witnesses for the railroad were examined; but, strange to say, not one of them could give any particular information as to the biting; they swore that Mr. Coleman did bite, but, though they had enjoyed the same opportunities for observation with their predecessors on the stand, they "couldn't exactly remember the details." Such is the effect of lunch.

The conductor told a plausible story, modelled carefully on my own statement, but differing in certain points that could be turned against me. It will be remembered that he told me in the cars that the directors had made a "rule," forbidding him to take tickets backward. On cross-examination, my counsel asked him where he was accustomed to turn in his tickets to the company. He attempted to evade the question again and again, but finally answered, with painful reluctance, "in New York." It was further extorted from him that the tickets were turned in at New York whether taken in going to or from that city; that it made no difference which way my coupon was used; and, finally, that, the directors of the road had never given him (as he asserted to me) a rule against taking coupons "backwards," but that the superintendent had verbally ordered him not to take them, about three years before! This superintendent, who, with his son, wrenched me from the train at Stamford when I attempted to re-enter it after my ejection, was obliged to swear that it was the exclusive right of the directors to make "rules," and, further, that they never had made a "rule" touching the ticket question; he himself having verbally instructed the conductors not to take tickets "backward," which be had no shadow of authority to do. Thus it seems that the "rule" for the violation of which I had been mildly rebuked by the servants of the railroad,—a violation which was the soul of the defence, its single excuse and answer to my allegations—was not a " rule" at all, but a mere verbal order given by an unauthorized person. Yet, in the face of the declaration, by one of the highest officers of the road, that there was no "rule," the judge charged the jury that a "rule" had been broken, that I was a trespasser, and that the railroad company had a right to eject me from the train, employing the necessary force and no more! Such a charge concerns every person in the community; for it seems that any of us, for disobedience to a non-existent rule, may be brutally dragged from a railway-car, and, seeking redress, shall be informed by the court that the railway company is responsible only for "excess of violence."

The examination of the superintendent having been concluded, the counsel for the railroad stated to the court that the victim of Mr. Coleman's carnivorous ferocity had been discharged from the road immediately after his misfortune; that diligent search had been made for him, but in vain. By one of those dramatic felicities, so frequent in fiction and so rare in real life, just at this juncture a telegram was brought in announcing that the bitten man had been found, and would arrive on a train due in ten minutes. The judge granted the delay asked for, and the spectators brightened up in anticipation of new and measurably tragic revelations. The delay was brief. In a few minutes the door of the courtroom was thrust open, and in rushed the witness, breathless with haste. A brisk, bronzed person he was, self-contained and self-satisfied, with locomotive gait, and a habit of gesture suggestive of brake-rods. He mounted the witness-stand, was sworn, and delivered his direct testimony with easy indifference, coupling his sentences as he would couple cars, with a jerk. This is his story in brief: "The conductor c'm out the car 'n' said,'' S man in there want ye t'take out.' Went in the car, and he said, 'That's th' man: put 'im out!' I jes' took 'im up and carried him out through the car out on t' th' platform th' depot, an' took 'n' set 'im down, an' never hurt him a mite." "Did Mr. Coleman bite you?" inquired the counsel for the railroad. "Yes, sir." "Did he bite you on the arm?" "Yes, sir." The lawyer asked him no more questions, evidently satisfied with the effect of his evidence thus far, and possibly remembering that, unlike the other witnesses for the road, he had not enjoyed the benefit of lunch. Remitted to my counsel for cross-examination, the witness, well pleased with his success, and confident in his own powers, met the inquisitorial onset with calm dignity.

"Mr. Witness," said the lawyer, "you were in the car on the day when Mr. Coleman was taken out, were you? Yes, sir; I took him out myself." Ah! you assisted the men to take him out, did you?" "No, sir; didn't have no men; took him out myself." "O, you took him out alone, then?" "Yes, sir; took him out alone." "You swear to that?" "Yes, sir; swear to it." "Nobody helped you?" "No, sir; took him out myself" Well, sir," pursued the lawyer, "you must be a stout fellow, to handle a man like that. Won't you please describe just how you took him out." "Well, I jes' went up to th' man, reached one arm 'round his neck, so fashion, had his head right up here on my arm, 'n' I jes' took 'im right through the car out on t' the platform th' depot, an' set 'im down and never hurt 'im a mite."

Every face was intent upon the witness and not a sound was heard save his voice, though there were premonitory symptoms of laughter. With a suavity delightful to see, the lawyer said, while he scanned the compact frame of the witness, "Why, you must be a powerful fellow!" "Yes, sir.; I'm big enough for him." "Well, now, will you be kind enough to tell the jury, did Mr. Coleman strike anybody?" "No, sir; I didn't give 'im no chance; I had 'im." "You swear to that positively?" "Yes, sir." A look of dismay and disgust settled upon the faces of the earlier witnesses for the road, who had graphically and minutely described my violent resistance, my kicks and blows. The spectators giggled, and even the judge relaxed the solemnity of his visage. "Did anybody strike Mr. Coleman?" continued the lawyer. "No, sir; I had 'im and didn't give 'em no chance." "You swear to that, too? " "Yes, sir." "Well, Mr. Witness, when you had Mr. Coleman's head upon your arm, as you described, I suppose you had his face turned a little toward your breast?" The witness, eagerly following this description of the situation and the gestures which illustrated it, his face now flushed and beaded with perspiration (for the work was harder than he had thought it), nodded assent. "Mr. Coleman's mouth, then, would come about there?" inquired the lawyer, pointing to the inside of the arm, next to the body. "Yes, sir; that's just the place where he bit me." "You swear to that positively?" "Yes, sir, positively." All the witnesses for the road, except the conductor, who did not commit himself as to the biting, swore emphatically that the bite was on the outside of the left arm, some of them placing the bitten man upon, the left of the biter; and now comes a third untutored witness, who claimed to be the sufferer and who of course ought to know the place of the bite, testifying with equal positiveness that the bite was on the inside of his arm. Even the counsel for the road could not refuse to join in the universal merriment which ensued.

On subsequent trials all this testimony as to the biting was rearranged. The victim of my ferocity was obliged to share the honor of taking me out with five auxiliaries, and the bite was transferred to his right arm. Being a draughtsman, I had measured the car, and was ready with a drawing to show that the new theories of the defence as to the method of taking me out left just three inches for the movement of each stalwart brakeman as he walked at my side.

I Suppose that I need give no extended report of the argument of the road's counsel. He took the highest ground,—the ground that the public had no right to question the management of the road; that the company owned it, and had the right to manage it as any other property is managed by a private corporation: that is, he denied the fact that the public is virtually a partner in railroad companies, which it creates and lifts into power by grants of franchises and land. Indeed, this distinction between public and private corporations has been carefully ignored by the judiciary of the country; and to this the present alarming domination of railroad corporations is mainly traceable.

I may say, for the encouragement of those who look to the courts for deliverance from a railroad tyranny, whose bonds the judiciary seems willing enough to rivet, that, in every trial, my counsel carried the jury with him, one single juror of the forty-eight excepted. This juror was said to have been formerly an employee of the New York and New Haven Railroad. The action of the several juries, so far as the public is concerned in it, is satisfactory and cheering; for it indicates unmistakably that the spring of railroad power in our courts is not in the deliberate judgment of intelligent men; but the judges' charges were in effect restatements of the arguments of the counsel for the railroad touching the general question of the rights and powers of railroads. The juries were instructed that the public has no voice in the affairs of railroads; that contracts with passengers were to be made on conditions fixed by one party, the railroad; that if a passenger violated its regulations, an assault upon him by the agents of the corporation was justifiable, though these latter must be careful to avoid excess of violence. The juries were also instructed that if they found that, in this case, the defendants had employed an excess of violence, they must not allow punitive damages, but only such as would compensate the plaintiff for his injuries. Despite these instructions the four juries promptly brought in verdicts in my favor, each one giving heavier damages than its immediate predecessor. On the second trial the jury disagreed, owing to one of its members; I am informed that many of his associates desired to award me $15,000. The first jury agreed upon a verdict of $10,000; but one of their number, versed in the ways of courts, suggested that it would probably be set aside, and that I would consequently be subjected to great trouble and expense; so they reduced the figures to $3,300, which was increased to $3,500 on the last trial.

Such, briefly sketched, were some of the features of my railroad fight in court. The reader will recollect that I—a man not rich and ill able to afford the time or expense of such a contest with an opulent corporation—was compelled to repeat this fight three times: first, because the verdict of $3,300 awarded excessive damages for one of the most brutal assaults ever committed, and the infliction of lifelong injuries; and subsequently upon pretexts even more trivial. The judges ruled that the roads had all the rights in the case, and I had none. They ruled that an order given by an unauthorized person, and confessedly no regulation, was a regulation, and that, if I violated it, I must take the consequences. They declared in effect that a railroad ticket was a contract, though it bore no government stamp, and was made by a single party. They suffered the wild and contradictory swearing of the road's witnesses to go unnoticed. But in spite of the judges, and their rulings, the juries were for me.

My fight out of court has been a different matter. The publication of my first article has called forth comments from the press in every part of the country. I have seen more than one hundred notices and articles based upon it, all of which, with three or four exceptions, applaud my course, and express the public sympathy with me in terms which I could not reproduce without seeming to turn to my own honor a matter which I am anxious to regard in an impersonal light. These articles have appeared in the most important journals of the country; I believe that no journal of influence has left the case unnoticed; and the country press has treated it as generously and courageously as the great newspapers of the city, which are supposed to be less susceptible to local influences, and more independent to advertisements and free passes. Nothing could be more instructive and interesting than this almost universal expression of public opinion by the public press in regard to the arbitrary and despotic management of our railroads. Many of the journals recur to the subject again and again, and all testify to the fact that every railroad passenger has seen or felt some outrage or oppression against which he has longed to protest.

This fact is even more vividly enforced by the private letters which have not, ceased to come to me since the publication of my paper. They are from women as well as men, and from persons in every station of life and every department of business, in nearly every State of the Union; and they congratulate me, not only upon my personal victory, but also upon my demonstration of the fact that it is possible for an individual to stand up in defence of his rights against a railroad corporation. They recite the tyrannies and meannesses of different railroads, and catalogue the stratagems by which railroad managers bind the hands that should protect the people from their encroachments. If it were possible to print these letters together, they would constitute an indictment whose force would impress even the most easy-going and spiritless citizen. I make an extract from one of them which, brief as it is, carries a tremendous significance. The letter was written by a resident of another State, who, like myself, had dared to sue a railroad.

He writes:
"But I am not yet out of the woods, as the case is again before the lower court, where it is delayed from the fact that most of our judges are disqualified from trying the case; one is secretary of the company; others are stockholders; others, before their elevation to the bench, were regular counsel for the company."

What is true in that State is true in all; the trail of the railroad is over every judicial bench in the country. In one of the great States of the West, a correspondent writes that one of the judges of the Supreme Court permits a railroad corporation, which is party to several suits pending before him, to transport free of charge building material for his new house, thereby saving him from five hundred to one thousand dollars in freight money. In New York some judges had become openly vendible; in other States they are more coy and circumspect; but in no State are they above suspicion, as judges ought to be. It is a notorious fact that railroad corporations regard the free-ticket system as one of the strongest bonds wherewith they have bound the American people. On the press, on the legislature, and on the judiciary they bestow "passes" with lavish hand, well knowing that every man who accepts one virtually assumes an obligation to favor the corporation which gives it. They do not count upon an immediate return, but are content to bide their time. Some day their road may need defence in the newspapers; or it may need an extension of its privileges at the hands of the legislature; or it may be a party in an important lawsuit. For all these contingencies it is prudent to provide.

One of the most curious and interesting of the letters I have received is from a former railroad man, in the West, who gives me his full name and address, and says,
"I wish to express my thanks to you for having benefited the country by your victory over a railroad, and by the article just sent forth; the statements of which I can testify are true, having been a railroad agent in a Western State."

From Albany a prominent merchant writes to congratulate me, and to express his own feeling in regard to the "arrogance, tyranny, and oftentimes brutality exhibited by railroad officials and employees"; and from Washington a gentleman, distinguished in literature and society, sends me his thanks. "I have for years," he adds, "called the attention of the public to the extortions and illegalities of our railroads. But it is slow work, because, as you have very well shown, the companies bribe indirectly, by propitiation, men who are, some of them at least, too honest to be bribed directly ..... But let us hope, some day or other, those fellows may hustle or maim a senator by mistake"; or, let me suggest, as even more to the purpose, a judge of the courts.

A letter from a well-known firm in Boston asserts that our merchants are doing business under a worse despotism than exists under any arbitrary government of the Old World. I need hardly say that my correspondents abound on the line of the New York and New Haven Road, and that they one and all hail my success with joy, and reiterate those well-known complaints of the road.

I may be excused, I trust, for copying finally a letter from a lawyer of Cambridge, Massachusetts, which is remarkable for the practical turn of the writer's sympathy:

"Accept my sincere thanks for your article in the December Atlantic. I have been intending to write you a letter of thanks for two weeks past, but am now specially moved to do so, as I can add to my own the high commendation of my friend Mr. ——, our United States minister to ——, who spent last night at my house. If you will accept it, I will send you fifty dollars as an earnest of my thanks, and as my contribution to your good work."

Naturally, I could not accept my correspondents offer, but I valued it as a movement in the right direction. The impulse which prompted it has already taken a practical shape in the West, where, as I learn, the farmers and merchants have already begun to form unions for their common defence against the railroads. The members contribute to a fund which is to be used in attacking the illegalities of the roads in the courts, and for defraying, at the common cost, the expenses of suits which private persons would not dare to undertake. This is a thoroughly practical movement, and altogether preferable to the secret political organization against the roads which has also been set on foot. Such a party is predestined to be the prey of politicians, who will betray it on the first occasion; but a co-operative society seeking justice in the courts must succeed, even though the judges who make railroad-law preside, with free passes in their pockets. There, with jurors who have never been connected with railroads, —jurors chosen only half as carefully in this view as jurors in murder cases are chosen,—the victim of railroad tyranny is sure of justice at last. No compromises should ever be accepted. A thousand suits at law would do more to right the public than any amount of legislation.

The most encouraging and satisfactory characteristic of my railroad fight out of court is that it is still going on, and I trust that it will continue till the insolence of these railroad corporations is curbed, and they are taught their single and true function of common carriers for the sovereign people. They are servants who have usurped the mastery. It is time they relinquished it.

John A. Coleman.

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