Beck v. Quincy, Omaha & Kansas City Railroad Co.
| Decision Date | 04 February 1908 |
| Parties | BECK, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Knox Circuit Court.--Hon. Chas. D. Stewart, Judge.
REVERSED AND REMANDED.
STATEMENT.--The purpose of this action is to recover damages for the alleged unlawful expulsion of plaintiff from one of defendant's passenger trains. This train left the station of Edina, where plaintiff was, February 4, 1905, some time between eight and ten o'clock in the evening. It was bound west for Hurdland, plaintiff's home, a station seven miles west of Edina. Plaintiff's own testimony and that of other witnesses, proves he had been loitering about a saloon in Edina kept by Hal Tyhurst during the entire day, had spent all his money and become intoxicated. According to some testimony he was quite drunk in the evening when he got on the train, but there was testimony which indicates he was then nearly sober. Before leaving Tyhurst's saloon to go to the station, plaintiff borrowed twenty-five cents from Tyhurst to pay the railroad fare to Hurdland, saying he had spent all his money; and on the way from the saloon to the station he fell in with a man by the name of Fox, who intended to take the same train he would travel on, and asked Fox to pay his fare. Plaintiff did not swear Fox agreed to do this, and Fox swore he did not. Reaching the station some time before the train came, plaintiff began to annoy a negro who was standing on the platform, and persisted in this conduct until the negro shoved him off the platform on the track, where he would have been killed by the approaching train had not Fox dragged him off the track when the train was but fifteen feet away. Plaintiff boarded the train and as soon as it moved out of the station the conductor asked for his fare. Plaintiff said Fox, who had gone to an adjoining car, would pay for him, and the conductor passed on to the next car. He soon returned and told plaintiff Fox had refused to pay plaintiff's fare which was true. The night was wild, with a snowstorm raging. The foregoing statement of facts is according to the narratives given by all the witnesses, including plaintiff; but at this point the plaintiff's version diverges from the versions of the other witnesses, and he was contradicted, in the main, by every one of them in so far as they testified about the same occurrences he did. He swore the conductor, after telling him Fox had refused to pay his fare, immediately seized him jerked him out of his seat, and the conductor and a brakeman hustled him along the aisle of the car and on the platform from whence he was flung with violence to the ground knocking him unconscious. He swore, further, he told the conductor just as he took hold of him, he had the money to pay his fare, offered to pay it and as he was being forced along the car drew the money from his pocket and tendered it, but the conductor said it was too late. Plaintiff swore, too, the conductor said he (the conductor) had been waiting for this opportunity, at the same time saying plaintiff was too late with his offer to pay. Plaintiff swore further he tendered payment as soon as the conductor took hold of his arm and commenced taking him to the door of the car and kept up the offer until he reached the second step, but the conductor only repeated the remark that it was too late. According to plaintiff he was ejected from the car about two miles west of Edina. George Simpson testified the conductor came along shortly after the train started and asked plaintiff for his fare and plaintiff said Fox would pay it. The conductor went into the other coach, came back in about five minutes and told plaintiff Fox would not pay the fare and plaintiff must pay it. Plaintiff then asked Elmer Chadwick for the money. Chadwick refused to let him have it, and about that time the conductor called a brakeman; grabbed plaintiff by the collar and arm and led him out the door. The witness swore he heard nothing further said in the car, but after plaintiff had been put off the train, and it had started, he heard plaintiff say he would pay the fare, and the conductor said it was too late. Simpson described the way in which plaintiff got off or was put off the train by saying he was sitting down and "just scooted off the steps; no one shoved him." This witness said the incident occurred twenty telegraph poles west of Fabius bridge, otherwise known as Lycan farm crossing, at the east end of the first cut west of Edina, and that the telegraph poles were eighty feet apart. He said he thought the lights of Edina could be seen from this place. John Heenan, who sat across the aisle from plaintiff, said the conductor came in and asked Beck for his fare and Beck said Fox would pay it. The conductor then collected some other fares, went into another coach and came back again took hold of plaintiff and said if he didn't pay his fare he would have to get off; taking him to the door. Fox testified to seeing plaintiff drunk about the station at Edina and his affray with the negro Ed Miller, in which Fox rescued him from the track just before the train reached him. He testified, also, to seeing plaintiff get on the train at Edina. Fox went into another car and next saw plaintiff at Lycan crossing after the train stopped; saw him standing on the north side of the track as the cars were moving away. Fox testified the conductor asked him if he was to pay any person's fare, and he stated he was not to do this and had not agreed to pay Beck's fare. Fox swore positively Beck was standing on the track when the train left him. The witnesses quoted from were introduced by plaintiff. W. H Green testified for defendant he was a passenger in the smoking car and heard what took place between the conductor and Beck. The conductor asked Beck for his fare and Beck said Fox would pay it. The conductor went in another car, was gone not more than a minute, came back and said Fox was not paying plaintiff's fare and plaintiff would have to pay or get off. Plaintiff was not dragged out of the seat, but went to the door. He offered to pay the conductor after he got off said he would pay his fare. This witness was sitting on the side from which Beck left the car and had the window open. Witness thought Beck said after the train started, he had twenty-five cents and would pay his fare. He was put off at mile-post No. 48, west of Edina; mile-post No. 47 being at Edina and just east of the station. W. B. Pickett for defendant swore he sat close to Beck in the car. Beck was in the rear end. When the conductor came in he asked Beck for the fare and the latter said Fox would pay it. The conductor went in another car, was gone about two minutes and returned and said Fox would not pay it. Beck retained his seat and the conductor took him by the collar and led him out of the car. He heard the conductor ask Beck twice for his fare and Beck asked Elmer Chadwick for money to pay it. Chadwick testified he was four or five seats from Beck on the opposite side of the car and in front of him. Bunnell, the conductor, asked for plaintiff's fare and Beck said Fox would pay it. Bunnell went into the next car and came back and asked for the fare again. Witness did not hear Beck's reply. The conductor said Beck would have to get off, tapped him on the shoulder and he walked out. Beck asked the witness for twenty cents to pay the fare and witness said he "was broke." T. D. Forester testified he saw Beck at Edina on the platform and was in the same coach with him. Beck was asked for his fare and said Fox would pay it. Bunnell went into the other coach came back and said Fox had refused to pay the fare and Beck would have to get off. Beck told the conductor he did not have any money and the conductor said he would have to get off. The train was stopped and Beck stepped out; did not see Beck offer any money to the conductor. G. Y. Bunnell, the conductor, testified he asked Beck for his fare about the time the train started, because he had had trouble with him before when he refused to pay fare. When asked for his ticket on this occasion Beck said Fox would pay for him, but Fox did not. Witness came back and told Beck he would have to get off. Witness tapped him on the shoulder and he walked out of the car to the lower step and slid off onto the right of way. After the signal was given and the train was starting, he offered to pay his fare, but witness said it was too late. As the train left Beck was standing on the right of way. On cross-examination this witness said Beck had refused to pay his fare on two other trips and was allowed to ride to Hurdland, because the train was on a grade, when his fare was requested, where it could not be stopped. The conductor positively denied Beck offered to pay his fare on the platform, but said he shoved his hand in his pocket. T. C. Clinkerbeard, a brakeman on the train, swore in regard to the manner Beck left the train that he sat down and "kind of scooted off;" and when the train left Beck was standing at the side of the track. William Fredericks, another brakeman, swore he first saw Beck sitting in the smoker. As the train pulled out of Edina the conductor started to take tickets and Beck said Fox would pay his fare. Bunnell went into the next coach and returned saying Fox would not pay and Beck would have to get off. The conductor told witness to set the air on the train and witness did so and opened the door of the car and walked out. Beck came walking out, got down on the second step, the rear step, and slid off; and as the witness signalled to go ahead Beck put his hand in his pocket and said he had money to pay his fare. Witness got on the rear coach and saw Beck standing on the right of way as the train pulled...
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