Cathey v. St. Louis & San Francisco Railroad Company
| Citation | 130 S.W. 130,149 Mo.App. 134 |
| Parties | W. W. CATHEY, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Decision Date | 07 July 1910 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment affirmed.
W. F Evans and Moses Whybark for appellant.
(1) The plaintiff was not entitled to recover in this case, and the court ought to have sustained the demurrer to the evidence. Eads v. Railroad, 43 Mo.App. 536; Berry v Railroad, 124 Mo. 254; Chilton v. Railroad, 114 Mo. 88; Younger v. Judah, 111 Mo. 303. (2) A regulation by a carrier requiring passengers to purchase tickets before entering trains, is a reasonable regulation. Mills v. Railroad (Tex.), 55 L.R.A. 501; Railroad v. Blythe (Ark.), 126 S.W. 387; Hutchinson on Carriers (2 Ed.), 652; 28 Am. and Eng. Ency. Law (2 Ed.) 201; McGowen v. Railroad (La.), 5 L.R.A. 817; Reese v. Railroad (Pa.), 6 L.R.A. 530; Ammons v. Railroad (N. C.), 51 S.E. 127; Cross v. Railroad, 56 Mo.App. 664; Gardner v. Railroad, 117 Mo.App. 138; Woods v. Railroad, 48 Mo.App. 132; Bolles v. Railroad, 134 Mo.App. 705. (3) The plaintiff was not entitled to recover exemplary damages in this case, and the court erred in submitting the question of such damages to the jury. McNamara v. Transit Co., 182 Mo. 680; Ickenroth v. Transit Co., 102 Mo.App. 612; Morgan v. Durfee, 69 Mo. 469; Franz v. Hilderbrand, 45 Mo. 121; Bruce v. Ulery, 79 Mo. 322; Brown v. Road Co., 89 Mo. 154; State v. Jungling, 116 Mo. 166; Welsh v. Stewart, 31 Mo.App. 381; Witascheck v. Glass, 46 Mo.App. 214; Pruitt v. Quarry Co., 33 Mo.App. 22. (4) The court erred in permitting the plaintiff to show that the defendant retained the brakeman in its employ. Haehl v. Railroad, 119 Mo. 342; Railroad v. Gordon, 143 F. 95, 74 C. C. A. 292.
H. E. Doerner for respondent.
(1) A carrier of passengers is bound to afford reasonable facilities to enable a passenger to comply with its rules and regulations. Railroad v. Flagg, 43 Ill. 364; Brown v. Railroad, 38 Kan. 684; Railroad v. Graham, 3 Ind.App. 28; Cross v. Railroad, 56 Mo.App. 677; Railroad v. Murden, 86 Ga. 434; Railroad v. Rosenzweig, 113 Pa. 519; 26 Am. and Eng. R. R. Cases 489; Baltimore v. Blocher, 27 Md. 277. (2) And they are required to give the passenger a reasonable opportunity to comply with such rules. Gardner v. Railroad, 117 Mo.App. 146. (3) And the question as to what would be a reasonable time is a question of fact for the jury to determine. Burks v. Stam, 65 Mo.App. 455; Pierce Co. v. Siegel, 60 Mo.App. 148; Fischer v. Anchor Line, 15 Mo.App. 577. (4) Because of the contractual relations between a carrier and its passengers, the former is liable for every unjustifiable assault upon the latter by its servants in charge of their transportation. Railroad v. Whitman, 79 Ala. 328; Sherly v. Billings, 8 Am. Rep. 451; Railroad v. Savage, 110 Ind. 156. (5) A brakeman who kicks a person as the latter is about to attempt to board a moving train, renders the company liable for the injuries resulting from his act. Molley v. Railroad, 10 Daly 453; Smith v. Railroad, 39 L. J. C. P. 349; Priest v. Railroad, 40 How. Pr. 456; Murray v. Boyne, 42 Mo. 472; State v. Griffen, 87 Mo. 608; State v. Gamble, 199 Mo. 427. (6) Where an act is wrongful, malicious and without probable cause, and the ejection is done with unnecessary violence, an assessment of exemplary damages by the jury is proper. Glover v. Railroad, 129 Mo.App. 563; Knight v. Railroad, 120 Mo.App. 311. (7) If an agent of a carrier is unreasonably peremptory in demanding a passenger's ticket, and does not give him time to find it before ejecting him, the ejection is wrongful, entitling the passenger to actual damages, and if it is accompanied with unnecessary force and insulting language, or either, the plaintiff is entitled to punitive damages. Belles v. Railroad, 115 S.W. 462; White v. Railroad, 132 Mo.App. 339; Randell v. Railroad, 102 Mo.App. 342.
This was a suit brought by the plaintiff to recover actual and exemplary damages by reason of an alleged assault by a brakeman of the defendant upon the plaintiff while the plaintiff was a passenger and was about to enter one of defendant's trains at Steele, Mo., while the train was in motion.
The petition, in substance, states that the brakeman of the defendant violently, wilfully and maliciously assaulted the plaintiff and kicked him in the face while he was trying to enter the train, and that by reason of said assault, plaintiff was bruised, his gums lacerated, and his teeth loosened. The charge for exemplary damages is that the brakeman wickedly, wilfully and maliciously kicked the plaintiff by which the plaintiff suffered great mental anguish, mortification and humiliation and incurred great expense for medical treatment. Plaintiff asked actual damages in the sum of one thousand dollars, and punitive damages in the sum of five hundred dollars.
The defendant in its answer pleaded first a general denial; also, that by the rules and regulations of the defendant, no person was allowed to enter upon its trains without having a ticket and exhibiting the same, which rule applied to all stations at which tickets were for sale, which included Steele; that the plaintiff failed to comply with this rule, but forcibly attempted to board the train without a ticket or without exhibiting it if he had one; that the force used was no more than necessary under the circumstances.
The reply was a general denial.
The case was tried before a jury which rendered a verdict for the plaintiff for fifty dollars actual and four hundred and fifty dollars exemplary damages. The cause is here on defendant's appeal.
The evidence offered by the plaintiff tended to show that on the morning of the 8th day of October, 1908, he bought a passenger ticket from the agent of the defendant at Steele authorizing passage on defendant's train to Caruthersville and return. That after he bought his ticket he started to get on the train which at the time was moving off; that an unusual crowd of people boarded the train that morning at Steele and that the train remained but a few moments, and that when plaintiff started to board it, the train was in motion. His evidence further showed that R. M. West was the brakeman on the train and as such demanded that plaintiff show his ticket. Plaintiff's evidence shows that he offered to show the brakeman the ticket when he got in the car; that at the time the demand was made for his ticket, the plaintiff was on the first step from the ground and the brakeman was on the last step going onto the car, and the train was moving; that plaintiff had hold of the rail with his right hand; that when West demanded that he show his ticket, he said, "You God-damned son-of-abitch, you can't ride on this train without showing your ticket," and kicked the plaintiff in the mouth; that West did not give the plaintiff time to produce his ticket. That the plaintiff had a ticket in his right-hand trousers' pocket at the time; that there was a clasp around the pocketbook, and that on that account he did not have an opportunity to show his ticket to the brakeman, but offered to do so when he got on the train; that the reason he did not get on the train sooner was on account of the crowd. That he called the brakeman no vile names and that he was not drinking at the time. That he did not know that it was a requirement of the company that he should show his ticket before going on the train and that if he had known it he would have had his ticket ready; that he had previously ridden on the trains of the defendant without showing his ticket before boarding the train, and that at such times R. M. West was the brakeman and had not required him to show his ticket. That by reason of the assault, his teeth were knocked loose, that his mouth swelled and became red, and that his gums were bleeding that morning and night and continued to bleed for three or four days. That at the time of the assault, he had been picking cotton, earning $ 2.50 per day. That the first time he knew the brakeman wanted him to show his ticket was when he was already on the first step while the train was moving off. This is the plaintiff's version of the affair and of the occurrence by which he received his injuries.
The necessity of common carriers of passengers adopting rules and regulations for the orderly management of their business is apparent on the slightest examination. It has been accordingly often and uniformly held by the courts that a rule and regulation that a passenger should exhibit his ticket on request before entering the passenger coach is a reasonable rule and that compliance therewith might be exacted. But it is apparent that the mere adoption of such a rule, however reasonable, does not end the responsibility of the carrier. A rule, like a law, is made to be enforced, and only serves its purpose when made effective by proper administration. The servants of the carrier who are entrusted with such administration are charged with a duty to the public as well as to the carrier. The rules should in themselves not only be reasonable, but they must be administered in a reasonable manner, adapted to the circumstances of each particular case as it arises, and not in a rude, harsh or oppressive manner so as to unnecessarily harass, or inflict unnecessary injuries and inconvenience upon the passenger.
The circumstances upon which liability is based in this case have been shown in detail. When plaintiff was asked to show his ticket, he says he told the brakeman he would show the ticket when he got on the train or pay his fare, and that the brakeman without giving him further opportunity, with a volley of profanity and in an angry manner violently kicked him in the...
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