Beck v. Quincy, O. & K. C. R. Co.

• Citation: 108 S.W. 132,129 Mo. App. 7
• Court: Court of Appeal of Missouri (US)
• Decision Date: 04 February 1908
• Parties: BECK v. QUINCY, O. & K. C. R. CO.

108 S.W. 132

129 Mo. App. 7

BECK v. QUINCY, O. & K. C. R. CO.

St. Louis Court of Appeals. Missouri.

February 4, 1908.

1. CARRIERS — EJECTION OF PASSENGERS AND INTRUDERS — EVIDENCE — QUESTION FOR JURY.

Whether one, suing a carrier for wrongful ejection from a train, boarded the train intending to pay his fare, and was therefore a passenger, or boarded the train intending to ride without paying fare, and was therefore a trespasser, held, under the evidence, for the jury.

2. SAME — TENDER OF FARE AFTER REFUSAL TO PAY.

Where one who boards a train, intending to ride without payment of fare, refuses to pay fare when demanded, and the refusal is induced by bad faith, the conductor, after attempting to eject him for nonpayment of fare, need not accept a tender of fare; but where one who boards a train, intending a pay fare, tenders his fare after refusing to pay, he cannot rightfully be ejected, though the tender is not made until steps have been taken to eject him.

3. SAME — INSTRUCTIONS.

In an action against a carrier for wrongful ejection of plaintiff from a train, an instruction that, if plaintiff offered to pay his fare after he had refused to pay and the conductor had signaled the train to stop to remove plaintiff, a subsequent offer to pay fare did not entitle plaintiff to be carried on the train, was not in conflict with a charge which made the right of plaintiff to continue on the train after he had failed to pay his fare when first demanded to depend on his subsequent tender of fare; an offer to pay fare, not accompanied by a tender of the money, being insufficient to put the

conductor in the wrong in going on with the expulsion.

4. SAME — MALICIOUS CONDUCT OF CONDUCTOR — EVIDENCE — QUESTION FOR JURY.

Where, in an action against a carrier for wrongfully ejecting plaintiff from a train, plaintiff testified that on his tendering the fare, after he had first refused to pay fare, the conductor said that it was too late, and that he had been waiting for an opportunity to expel plaintiff from the train, and the conductor testified that he had had trouble with plaintiff before about fares, and was a "little sore" at plaintiff, and there was evidence that the conductor, after refusing to accept plaintiff's tender of fare, threw him violently off the train at a place distant from a residence or station, the question of malice on the part of the conductor was for the jury.

5. SAME — PLACE OF EJECTION — STATUTES — CONSTRUCTION.

Rev. St. 1899, § 1074 [Ann. St. 1906, p. 923], providing that, where any passenger shall refuse to pay his fare, the conductor may eject him at any usual stopping place or near any dwelling house, prohibits the ejection of a passenger for refusing to pay fare except at the places designated, and is violated where a conductor ejected from a train one who took passage intending in good faith to pay his fare, on his refusal to pay fare, notwithstanding his tender of fare after the ejection had commenced, where the conductor stopped the train at a spot distant from a residence or station; but, if the person took passage intending to ride without payment of fare, he was a trespasser, and not within the protection of the statute.

6. SAME — TRESPASSERS — OBLIGATION OF CARRIERS.

A carrier is bound to accord to a trespasser on a train humane treatment, and cannot inflict brute violence on him, or employ more force than is needed to eject him; and ejecting him under circumstances indicative of inhumanity or reckless disregard of life may entitle him to an action.

7. APPEAL — DISCRETION OF TRIAL COURT — CONDUCT OF TRIAL.

The discretion of the trial court in preserving proper conduct during a trial and preventing the utterance of statements likely to mislead the jury regarding the evidence or arouse their sympathy is not absolute, but is subject to review on appeal.

8. TRIAL — IMPROPER CONDUCT OF COUNSEL.

Where, in an action against a carrier for wrongfully ejecting one from a train, counsel for plaintiff, during the examination of defendant's witnesses, referred to them as persons who would all swear alike and were members of a "gang," and during his argument to the jury stated that the history of litigation showed that employés of railroads were compelled to color the truth, and that plaintiff was contradicted only by the corporation "henchmen," and that there was no excuse for the "henchmen" of the railroad hounding plaintiff, and the court merely said that the counsel should not make such remarks, and should not go outside the evidence, the conduct of counsel constituted reversible error, especially where the jury awarded only $1 actual damages and $1,000 punitive damages, notwithstanding plaintiff's testimony, if believed, warranted substantial damages.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by Abraham T. Beck against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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 8 and 10 o'clock in the evening. It was bound west for Hurdland, plaintiff's home, a station 7 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 25 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 15 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, including his own, 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 2 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 20 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 80 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 did not 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...