Cornell v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 16 May 1910
• Citation: 143 Mo. App. 598,128 S.W. 1021
• Parties: CORNELL v. CHICAGO, R. I. & P. RY. CO.
• Court: Missouri Court of Appeals

128 S.W. 1021

143 Mo. App. 598

CORNELL v. CHICAGO, R. I. & P. RY. CO.

Kansas City Court of Appeals. Missouri.

May 16, 1910.

1. CARRIERS (§ 253)—CARRIAGE OF PASSENGERS—TICKETS—NATURE.

A railroad ticket for transportation, paid for at the ordinary rate, is not a contract within itself, but a mere evidence of contract, which the law creates and which lies behind the ticket.

2. CARRIERS (§ 251)—CARRIAGE OF PASSENGERS—CONTRACT OF CARRIAGE.

Where a carrier sold plaintiff a ticket to a certain point, the agent stating that the company sold no tickets to a transfer point further on where plaintiff desired to go, but that plaintiff would be carried to the transfer point and allowed to alight there, and he was permitted by the conductor to continue on his journey as a passenger until he reached such transfer point without additional fare, there

was a contract of carriage to such transfer point.

3. CARRIERS (§ 251)—CARRIAGE OF PASSENGERS—CONTRACT OF CARRIAGE—AGENCY OF TICKET AGENT AND CONDUCTOR—"CARRIER CORPORATION."

In making a contract of carriage, a ticket agent is the "carrier corporation," as is the conductor on the train in carrying the contract out.

4. TRIAL (§ 251)—INSTRUCTIONS.

In an action for injuries to plaintiff in alighting from a train, where plaintiff's right to recover in the absence of a contract of carriage was not raised in the pleadings, a charge that if defendant was not bound to stop its train where plaintiff attempted to alight, to allow passengers to alight, in the absence of a contract to stop for that purpose, and if plaintiff was riding on the train from the point to which his ticket read to the place where he alighted without payment of fare, he took the risk of alighting safely, though defendant's agent permitted him to ride without payment of fare, was properly refused as tendering an issue not within the pleadings.

5. CARRIERS (§ 321)—CARRIAGE OF PASSENGERS—ACTION FOR INJURIES—INSTRUCTIONS.

The charge was also erroneous as omitting the element of notice to defendant's servants that plaintiff intended to alight where he did, since whether he had or had not a contract of passage to the place where he alighted, defendant owed him due care; he still being a passenger.

6. TRIAL (§ 267) — INSTRUCTIONS— "SERVANTS."

It was not error to modify a charge that if the jury believed that plaintiff purchased a ticket to a certain station, but remained on the train and did not get off there, and did not communicate his intention to get off at a place further on, to the conductor, and if the conductor did not know that plaintiff intended to leave the train when he did, they should find for defendant, by substituting "defendant's servants" for the word "conductor," where first used, and "such servant" for "conductor" where it later appeared; there being no substantial difference between the words; "servants" including "conductor."

7. APPEAL AND ERROR (§ 882)—INVITED ERROR.

Error, if any, in permitting plaintiff to recover outside of the allegations of his petition, was waived by defendant's tendering the issue raised by instruction.

8. CARRIERS (§ 315)—CARRIAGE OF PASSENGERS — ACTION FOR INJURIES — PLEADING— VARIANCE.

The gravamen of an action for injuries to a passenger, so far as payment of fare is concerned, is that he paid his fare to the carrier for the service, and the variance between an allegation that he paid it to the conductor and proof that he paid it to the ticket seller was not substantial.

9. APPEAL AND ERROR (§ 197)—QUESTIONS NOT RAISED BELOW—VARIANCE.

If the variance in fact worked a surprise to defendant, it should have made an affidavit to such effect, and asked the court for time to meet the unexpected issue, under Rev. St. 1899, § 655 (Ann. St. 1906, p. 671), providing that the fact of surprise by a variance between an allegation in a pleading and the proof may be shown by affidavit, whereupon the court may order the pleading amended, and not having done so it could not complain on appeal.

Appeal from Circuit Court, Buchanan County; C. A. Mossman, Judge.

Action by Roy Cornell against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Brown & Dolman, for appellant. Brewster, Ferrell & Mayer, for respondent.

BROADDUS, P. J.

This is a suit by a passenger to recover damages for injury alleged to have been sustained by reason of the alleged negligence of the carrier. In his petition plaintiff alleges that on the 25th day of May, 1909, he entered defendant's passenger train at St. Joseph, for the purpose of being transported to Weatherby Crossing; that he paid his fare from the initial to the terminal point mentioned to the conductor, and that thereby it became the defendant's duty as a common carrier of passengers to safely transfer him to his destination, and that when he entered the train and paid his fare he was assured by the agents and servants of defendant operating the same that it would stop at Weatherby Crossing, so that plaintiff could safely alight therefrom; that when the train arrived at said crossing it was stopped, and plaintiff was notified by defendant's agents in charge of it to alight; that he thereupon attempted to do so, but while he was upon the steps of one of the passenger cars, in the act of alighting, and before he had reasonable time to do so, the defendant's agents in charge of the train negligently and carelessly caused the same to suddenly start forward with a violent...