25 Mo.App. 619 (Mo.App. 1887), Corrister v. Kansas City, St. J. & C. B. R. Co.
|Citation:||25 Mo.App. 619|
|Opinion Judge:||HALL, J.|
|Party Name:||RICHARD CORRISTER, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.|
|Attorney:||STRONG & MOSMAN, for the appellant. SHERRY & HARLOW, for the respondent. For these reasons the court should have given the instruction number six, asked by defendant, and should have modified instruction number two, given for plaintiff.|
|Case Date:||April 25, 1887|
|Court:||Court of Appeals of Missouri|
APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.
Reversed and remanded.
Statement of case by the court.
This was an action for the recovery of damages, on account of the plaintiff's wrongful ejection from one of defendant's trains of cars. The plaintiff entered the train at Iatan, one of defendant's stations. The train was bound for Kansas City, and the plaintiff claims to have given the conductor a ticket for Kansas City. The plaintiff was ejected at Beverley Junction, the second station on defendant's railroad from Iatan, on the route to Kansas City.
The station between Iatan and Beverley Junction was Weston. The conductor claimed that the plaintiff gave him no ticket, but paid his fare from Iatan to Weston only.
On the trial, plaintiff's witness, Mangler, testified that he went up to Iatan with the plaintiff, on the Friday following the Sunday that plaintiff was put off the train, and that a man was pointed out to them there, as the station agent of the defendant at the point, and that he and the plaintiff went to the person so pointed out and had a conversation with him, whereupon counsel, asked the following question:
Q. " State if you had any conversation with him with regard to station agent's selling the plaintiff a ticket?"
To which question the defendant's counsel objected, because the same was incompetent and immaterial which objection was, by the court, overruled, to which ruling the defendant then and there excepted.
In answer to said question, witness stated:
A. " The ticket agent said to us that he remembered the instance of selling Mr. Corrister a ticket."
Plaintiff's counsel asked said witness the following question:
" Where did he say the ticket was to go to, or anything about it?"
Defendant objected to the introduction of said evidence, because the same was incompetent evidence, which objection the court overruled, and permitted the witness to answer the question, to which ruling the defendant then and there excepted.
In answer to said question, witness stated:
A. " We asked him, did he recall perfectly the ticket he sold, and he says they have a record of every ticket they sell, and they are turned into the office, and there is a record kept of it in that way."
Q. " Did he look at the record there?"
A. " He did not, but he said he remembered putting it down."
The plaintiff testified that he left Beverley Junction at five o'clock in the afternoon, and began his journey on foot, on the defendant's railroad track, to Kansas City (shown by other evidence to have been thirty miles distant); that it began to rain in about a half or three quarters of an hour after he left said station; that he stayed out all night, exposed to the inclement weather, and arrived at Kansas City next day, sick and sore from the exposure and walk. He also testified that he did not seek shelter at any house, and, as a reason therefor, stated that he had no money with him. He testified that he had not a cent of money with him.
The court gave the following instruction for the plaintiff:
" 1. If the jury believe, from the evidence, that, on or about the nineteenth day of April, 1885, the defendant was the owner of a railroad, with locomotives and cars thereon, and was, at said time, engaged in carrying passengers over its said road, on its said cars, for hire, and, at said time, the defendant, as alleged in plaintiff's petition, undertook and agreed to carry plaintiff, as a passenger on one of its trains of cars, from the town of Iatan, in the state of Missouri, to the City of Kansas, in said state; and that the defendant, as alleged in plaintiff's petition, received the plaintiff upon its said cars, for the purpose of being so carried as a passenger; and that the defendant, as alleged in plaintiff's petition, without any just cause or excuse, forcibly ejected plaintiff from its said cars, and refused to carry the said plaintiff to the said City of Kansas, then you will find for the plaintiff."
" 2. If the jury believe, from the evidence, that the plaintiff was, as alleged in plaintiff's petition, ejected by the defendant, its agents and servants, as charged in the petition, in assessing his damages, you will...
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