[Copyrighted Material Omitted]
Error
from Harvey District Court.
ON May
29, 1885, A. C. Gants brought his action against The
Atchison, Topeka & Santa Fe Railroad Company, and in his
petition alleged:
"That
at all times hereinafter mentioned, the defendant was and now
is a corporation duly organized under and pursuant to the
laws of the state of Kansas, and was the owner of a certain
railroad known as the Atchison, Topeka & Santa Fe
Railroad, with the tracks, cars, and other appurtenances
thereunto belonging, and was a common carrier for hire and
reward from the city of Newton, in Harvey county, to the city
of Peabody, in Marion county, being wholly within the state
of Kansas; that on the 19th day of May, 1885, the defendant
in consideration of the sum of fifty cents then paid to it by
the plaintiff therefor, at its ticket office in the city of
Newton, issued to him a ticket entitling him to a first-class
passage, and to be carried from said city of Newton to said
city of Peabody, and thereby undertook and agreed as such
common carrier, to transfer and carry the plaintiff from said
city of Newton to said city of Peabody as a passenger, and
plaintiff thereupon entered one of the cars of the defendant
to be conveyed from said city of Newton to the city of
Peabody aforesaid; that while he was such passenger at said
county of Harvey, and when at a distance of about three miles
from the said city of Newton, on said line of railroad, and
on the day aforesaid, the defendant, by the conductor and
trainmen on said train, set upon the plaintiff, and with
unnecessary violence assaulted, beat, bruised, cut, maimed
wounded and lacerated the plaintiff in the most grievous
manner; took from him said ticket, seized and despoiled him
of a large amount of money, to wit, the sum of one hundred
dollars, and then and there afterward threw and ejected him
forcibly and violently from one of its cars upon a heap of
stones, cutting, lacerating and bruising him, thereby causing
lasting and permanent injury to him, the said plaintiff; that
ever since that time he has suffered from internal injuries,
received therefrom as aforesaid, so that he cannot retain
food in his stomach, but immediately after eating is attacked
with violent vomitings and retchings, causing him great pain
and suffering; that since that time he has been unable to
pass urine or fecal matter without the use of artificial
means, and then only with great pain; that he has suffered
great pain along the region of his spinal column, and was by
the said acts of the defendant permanently and seriously
injured in his spine; that plaintiff on account of said
injuries has suffered and languished from hence hitherto;
that the plaintiff was then in good health, and was then
earning and continuously able to earn, prior to the injuries
complained of, seventy-five dollars per month; that he was
thereby disabled from attending to his business for the space
of ten days thereafter, being wholly or almost deprived of
the use of his limbs, and has been compelled to pay one
hundred and fifty dollars for medical attendance; that on
account of said injuries so received, plaintiff has suffered
great mental and bodily anguish, to his damage of fifty
thousand dollars.
"Wherefore,
the plaintiff prays judgment against said defendant for fifty
thousand dollars, his damages sustained by reason of the
premises so as aforesaid alleged, and all other proper
relief."
On June
29, 1885, the railroad company filed the following answer:
"1.
Now comes the defendant in the above-entitled cause, and for
answer to plaintiff's petition filed therein, denies each
and every material allegation therein contained.
"2.
The defendant, further answering, for a full and complete
defense states: On the occasion complained of in the
petition, the plaintiff attempted to ride on the fast
passenger train of defendant, bound eastward, which train,
according to the rules and regulations of the defendant,
which were well known to the plaintiff and the traveling
public, generally did not stop at Peabody, and that the
conductor of said train put the said plaintiff off of the
said train, using no unnecessary force, because the plaintiff
refused, after demand, to pay fare to the station beyond
Peabody, namely, Florence, at which said train would stop;
and further, because said plaintiff, when the conductor
informed him that the train would not stop at Peabody,
insisted upon riding upon said train, and used violent,
profane and offensive language, and behaved in such an
indecent manner as to authorize and justify the
defendant's conductor in ejecting him from the train.
Wherefore, defendant prays judgment."
On July
1, 1885, Gants filed a reply containing a general denial of
the matters and things alleged in the second defense of the
answer. Trial had at the February term, 1886, before the
court with a jury. The jury returned a verdict for the
plaintiff, and assessed his damages at four thousand dollars;
and also made the following special findings of fact:
"1.
Is it not a fact that the train upon which the plaintiff
attempted to take passage from Newton to Peabody, Kansas, was
a train which, under the rules and regulations of the
defendant, in force at that time, did not stop at Peabody
Kansas, unless it had passengers upon it from west of Newton?
Ans.: Yes."
"5.
Prior to the time the train started upon which plaintiff
attempted to take passage from Newton to Peabody, Kansas, did
not plaintiff know or was he not informed that such train
would not stop until it arrived at Florence, Kansas? A. No.
"6.
Is it not a fact that when the conductor came up to the
plaintiff on the train on which plaintiff was attempting to
take passage from Newton, Kansas, to Peabody, Kansas, to
demand plaintiff's fare, that plaintiff handed to such
conductor his ticket, and that such conductor then and there
informed him that the train did not stop at Peabody, Kansas,
but that its first stop would be at Florence, and that he,
the conductor, would accept such ticket for the amount paid
for it on the plaintiff's paying to him the fare from
Peabody to Florence, and that he would carry the plaintiff to
Florence? A. Yes.
"7.
Is it not a fact that the plaintiff refused to pay to the
conductor of the train on which he was attempting to take
passage, from Newton to Peabody, Kansas, the amount of fare
from Peabody to Florence, the point at which said train first
stopped, under the rules and regulations of the defendant
after he was informed that such train would not stop at
Peabody, and that its first stop would be at Florence? A.
Yes.
"8.
Is it not a fact that the conductor, in the last question
referred to, informed the plaintiff that if he would not pay
in addition to his ticket the fare from Peabody to Florence,
that he, the conductor, would have to stop the train and put
him (the plaintiff) off? A. Yes.
"9.
Is it not a fact that the conductor of the train upon which
the plaintiff was attempting to take passage from Newton to
Peabody, stopped such train for the purpose of putting
plaintiff off after his refusing to pay his fare from Newton
to Florence? A. Yes.
"10.
Is it not a fact that at the time of stopping such train for
such purpose as is referred to in the last question, the
conductor of such train was actuated by a desire to obey the
rules of the company by whom he was employed? A. Yes.
"11.
Up to the time the train was stopped for the purpose of
putting off plaintiff, had the conductor of such train
demeaned himself in any way different from that of a
gentleman towards the plaintiff? A. No.
"12.
Prior to the time that plaintiff was actually put off from
the train, did plaintiff offer to pay his fare to the first
station at which the train he was upon stopped, under the
rules and regulations of the defendant? A. No.
"13.
Is it not a fact that after the train was stopped, the
conductor of such train requested the plaintiff in a
gentlemanly manner to leave the train? A. Yes."
"15.
State if it is not a fact that the plaintiff resisted being
put off from the train after it had come to a full stop, to
the utmost of his power and ability? A. Yes.
"16.
How many people were actually engaged in getting plaintiff
from the place where he was seated in the car, after the
train stopped, to the platform of such car, for the purpose
of putting him off? A. Three.
"17.
Under the resistance offered by the plaintiff to being put
off from the train, how much less force would it have taken
to have put him off than was used? State fully. A. One-half
less, or two men should have taken him out of the car.
"18.
Was it not a fact that after the train was stopped for the
purpose of putting plaintiff off from it, and before any
hands were laid upon the plaintiff to put him off from such
train, that plaintiff refused to go off, and dared the
conductor to put him off? A. Yes.
"19.
Is it not a fact that the car in which the plaintiff was
seated at the time he was put off from the train, was pretty
well filled with passengers, including many ladies? A.
Yes."
"21.
State fully what acts or force or violence were used by the
conductor or any person in putting plaintiff off from that
train, in excess of that force which was required and made
necessary to be used by the resistance of the plaintiff. A.
The force that produced the wounds on hands, back and
limbs."
"23.
Could the conductor on that train, under the resistance
offered by the plaintiff, remove plaintiff from it without
assistance? A. No.
"24.
Could the trainmen of that train have removed plaintiff,
under the resistance which he offered, without the use of a
great deal of force? A. Yes.
"25.
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