Davis v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 August 1873
• Citation: 53 Mo. 317
• Parties: OLIVER DAVIS, Appellant, v. THE KANSAS CITY, ST. JOSEPH and COUNCIL BLUFFS RAILROAD COMPANY, Respondent.
• Court: Missouri Supreme Court

53 Mo. 317

OLIVER DAVIS, Appellant,

v.THE KANSAS CITY, ST. JOSEPH and COUNCIL BLUFFS RAILROAD COMPANY, Respondent.

Supreme Court of Missouri.

August Term, 1873.

Plaintiff procured a ticket entitling him to transportation on defendant's road from W. to B., but upon entering the car refused to surrender his ticket until he was provided with a seat, and was thereupon ordered to leave the train when it should arrive at F. Having procured a seat at F., he tendered his fare from that point to B., but refused to surrender his ticket. The conductor refused to accept the amount offered, and ejected plaintiff from the train. Held, in an action for damages brought upon the original contract for transportation made at W., that plaintiff was not entitled to carriage from F. to B. without surrendering his ticket or tendering his fare from W. The case might be otherwise if plaintiff alleged a new contract entered into at F.

Appeal from Buchanan Circuit Court.

Hill and Carter, for Appellant.

I. At Forest City, where plaintiff could get a seat, he offered to enter into a new contract, and tendered his fare to Bigelow, which defendant refused and turned him off the train, when he was in justice and in law entitled to a ride. It must be an extreme case which will excuse or justify a R. R. Company in absolutely refusing to carry a passenger. (2 Redf. Railw.,(4th Ed.,) 257, § 198; 258, n. 4.)

II. A passenger, who is not furnished with a seat, is not obliged to pay fare, and if he is expelled from the cars for refusing such payment, may sustain an action against the Company. (2 Redf. Railw., (4 Ed)., 257, n. 1.)

III. The defendant could not in any event be justified in ejecting and turning passenger out of train at any other place on its route than a usual stopping place or near a dwelling house. (1 W. S., 307, § 28; 18 U. S. Dig., 101, § 105; Stephen vs. Smith, 29 Verm., 160; 18 Ills., 460.)

Hall and Oliver & Stringfellow, for Respondent.

SHERWOOD, Judge, delivered the opinion of the court.

Oliver Davis brought suit in the Circuit Court of Buchanan county, against The Kansas City, St. Joseph & Council Bluffs Rail Road Company, and his petition is substantially as follows:

The first count alleges, that defendant was an incorporated company, under the laws of this State, engaged in the transportation of passengers for hire, on the line of its road, from Kansas City through St. Joseph to Council Bluffs in the State of Iowa; that plaintiff purchased of defendant on the 18th of October, 1870, a first-class ticket entitling him to a seat, in accordance with such ticket, in the cars of defendant, from the town of Winthrop to the town of Bigelow, on the line of defendant's railroad; that defendant failed and refused to furnish sufficient accommodations, and its cars were so crowded, that plaintiff could not procure a seat; was compelled to stand to his great pain, danger, &c., by being jolted and thrown about by the rapid motion of the cars against the arms of seats, &c., although plaintiff was suffering at the time with great physical debility, and rheumatism; to his damage in the sum of five thousand dollars, for which judgment is asked.

The second count in its introductory matter is like the first, and charges that defendant, “after having carried plaintiff as such passenger in such cars” to a place about half way between Forest City and Bigelow, declined and refused to further carry or transport him, and ejected him without lawful excuse from its cars, in the night time, on an uninhabited prairie, while the night was dark, cold and rainy, whereby plaintiff was compelled to walk about five miles to the town of Bigelow, through mud and water, exposed to great danger, and his health impaired, &c. to his damage in the sum of ten thousand dollars, and judgment asked for that sum.

The chief portion of the answer of defendant is tantamount to a general denial; it admits that plaintiff was a passenger on its road, but denies that he had purchased a ticket, and then as a further defense, states that he went on board of the cars of defendant, and that while on said cars, between St. Joseph and Forest City, the conductor asked plaintiff for his...