Corrister v. Kansas City, St. J. & C. B. R. Co.

Decision Date25 April 1887
CourtKansas Court of Appeals

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 take into consideration the extent of his exposure, inconvenience, and delay in consequence thereof, and also his bodily pain and mental anguish, and assess his damages in a sum not to exceed five thousand dollars."

The court refused to give the following instruction, asked by the defendant:

" 6. If the jury find for the plaintiff, they will, when estimating his damages, not allow him anything on account of the fact that he was exposed to a rain storm, nor for any sickness or stiffness he may have suffered in consequence of such exposure and walk to Kansas City, nor for any time lost, as is claimed by him, after his return to Kansas City, in consequence of such walk and exposure."

STRONG & MOSMAN, for the appellant.

I. It was error to permit the plaintiff to introduce evidence in relation to the effect that the exposure to the rain had on his health. It was not a proximate result of the ejection of plaintiff from the train. Frances v. Transfer Co., 5 Mo.App. 7; Railroad v. Birney, 71 Ill. 391; Gilliland v. Railroad, 19 Mo.App. 417; Brown v. Railroad, 20 Mo.App. 222; Railroad v. Kellogg, 94 U.S. 475; Shaeffer v. Railroad, 105 U.S. 249; McAllister v. Railroad, 74 Mo. 361.

II. It was error for the court to permit the introduction of the declarations of the alleged station agent of the defendant. The ejection took place on Sunday, the nineteenth day of April, and the statements were made on the following Friday, to a friend of plaintiff, who went with him to Iatan to assist him in hunting up the evidence in the case. McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; O'Bryan v. Kinney, 74 Mo. 125; Hamilton v. Berry, 74 Mo. 176; Aldrich v. Railroad, 78 Mo. 559; Scoville v. Glasner, 79 Mo. 449; Chillicothe v. Raynard, 80 Mo. 185; Wingler v. Railroad, 16 Mo.App. 493.

III. The giving of plaintiff's instructions was error. The first remitted the jury to the pleadings to find the issues. Remmler v. Shenuitt, 15 Mo.App. 196; Crole v. Thomas, 19 Mo. 329; Talbott v. Mearns, 21 Mo. 427; Yarnall case, 75 Mo. 583. The second is liable to the same objection. Cases cited, supra.

IV. Only such damages can be allowed as arise naturally and directly from the breach of the contract; that is, such damages as both parties might reasonably have expected, at the time of entering into the contract, to result from its breach. Frances v. Transfer Co., 5 Mo.App. 7; Wood's Mayne on Damages, pp. 21, 33, et seq.; 3 Parsons on Contracts [5 Ed.] p. 179, note 5; Sedgwick on Damages [5 Ed.] 79; Hughes v. Hood, 50 Mo. 350; Sanders v. Brosius, 52 Mo. 50. The damage must be certain, both in its nature and in the cause from which it proceeds. Griffin v. Colver, 16 N.Y. 489, 494-5; Leonard v. Tel. Co., 41 N.Y. 544; Baldwin v. Railroad, 45 N.Y. 744, 753. It was error to instruct the jury that they should " take into consideration the extent of his exposure" in walking to Kansas City in a rain storm and sleeping out of doors. These are not " damages which arise in the usual course of things from a breach " of the contract of carriage. If they existed at all, they arose " out of circumstances peculiar to the case," and are not recoverable because the special circumstances were unknown to defendant.

V. Defendant's sixth instruction should have been given. Frances v. Transfer Co., 5 Mo.App. 7; Railroad v. Birney, 71 Ill. 391; Clark v. Railroad, 39 Mo. 190; Bank v. Tel. Co., 30 Ohio St. 555; Henry v. Railroad, 76 Mo. 294-5; Lowery v. Tel. Co., 60 N.Y. 198; Smith v. Tel. Co., Ky. App., 20 Rep. p. 240. Defendant's seventh instruction should have been given. It merely declared that the burden of proof was upon plaintiff to establish the facts " by a preponderance of the evidence " to the satisfaction of the jury, which entitled him to nothing more than compensatory damages, and it was error to refuse it.

VI. The damages assessed by the jury are outrageously excessive. The good faith of the conductor was shown by plaintiff's own evidence. The absence of all desire to oppress him is shown by the fact that he carried him three miles beyond the point where he was when the conversation about the ticket took place; by the fact that he refused to put plaintiff off at that point, though requested to do so; by the fact that he never offered to lay his hand on him as he was leaving the train. The plaintiff was only getting thirty dollars per month. By what possible reasoning could it be said that he was damaged to the amount of a year's earnings at his own chosen vocation? The case was not one in which vindictive damages could be awarded. Logan v. Railroad, 77 Mo. 669; Marshall v. Railroad, 78 Mo. 612; Railroad v. Guinan, 11 Lea. (Tenn. S. C.) 41 Am. Rep. 279; Railroad v. Wright, 68 Ind. 597. For the foregoing reasons we respectfully pray a reversal of the case.

SHERRY & HARLOW, for the respondent.

I. The appellant attempts to give seven distinct reasons called points, why the judgment of the circuit court in this case should be reversed. We will refer to them in their order. " It was error to permit the plaintiff to introduce evidence in relation to the effect that the exposure to the rain had on his health. It was not a proximate result of the ejection of the plaintiff from the train." The evidence on the part of the plaintiff was to the effect that the conductor ejected him from the train; that, being without money, he was compelled to make...

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