Evans v. St. Louis

• Decision Date: 28 February 1882
• Citation: 11 Mo.App. 463
• Parties: J. W. EVANS, Respondent, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

11 Mo.App. 463

J. W. EVANS, Respondent,

v.ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1882.

1. A contract between a carrier and a passenger will, when open to construction, be so construed as to save a right and prevent a forfeiture.

2. The holder of a railway ticket, by the terms of which he agrees to “use the same on or before the expiration” of a day named, complies with the terms of that limitation where he enters upon the transit before midnight of the day named.

3. Exemplary damages may be allowed where the act of the carrier in unlawfully ejecting the passenger from the train is wanton, reckless, and oppressive.

4. Where a passenger is unlawfully put off the train at a flag station at midnight, in a wintry storm, a great distance from his starting point and his destination, and, in endeavoring to walk to the next station, falls through a cattle-guard and is injured, it is proper to submit to the jury the questions as to whether the injury was the proximate consequence of the wrong done in putting the passenger off the train, and as to whether the conduct of the conductor in putting him off was wanton, reckless, and oppressive.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

BENNETT PIKE, for the appellant: A time may be limited upon a ticket, after which it is of no value; and where a ticket expires of a certain date, if a passenger refuse to pay the regular fare upon request, he may be ejected.-- Boston v. Proctor, 1 Allen, 267; Ripley v. Railroad Co., 31 N. J. L. 388; Hill v. Railroad Co., 63 N. Y. 101; Sherman v. Railroad Co., 40 Iowa, 45; Lillis v. Railroad Co., 64 Mo. 464; Brown v. Railroad Co., 64 Mo. 536. There is in this case no evidence of a wanton, reckless, or oppressive action on the part of the conductor Webb towards the plaintiff. If any wrong was done, it was simply an error of judgment in construing the ticket and in ejecting Evans from the train. All the testimony shows that there was no resistance made, but merely a walking out by Evans on to the platform. If damaged, what then is the measure of his damages? Clearly those immediately arising from his expulsion.--2 Redf. on Rys. (5th ed.) 297; Brown v. Railroad Co., 64 Mo. 536; Graham v. Railroad Co., 66 Mo. 536; Pullman Palace Car Co. v. Reed, 75 Ill. 125; Milwaukee R. Co. v. Ames, 91 U. S. 489.

W. C. HOBBS, for the respondent: “Where malice, violence, oppression, or wanton recklessness mingle in the controversy, vindictive damages may be awarded.”-- Hicks v. Railroad Co., 68 Mo. 329. The question, whether the unlawful putting off of the passenger is the proximate cause of the injury, is for the jury.-- Clemens v. Railroad Co., 53 Mo. 366.

THOMPSON, J., delivered the opinion of the court.

The plaintiff recovered a judgment against the defendant for $250 damages for ejecting him from one of its passenger trains. It appears that on the twenty-sixth day of February, 1881, he purchased of a ticket broker at the Union Depot, in St. Louis, an emigrant ticket from St. Louis to Little Rock, which had been originally issued by the Ohio and Mississippi Railroad Company on account of the defendant. This ticket contained the following clause: “The holder hereof, in consideration of the reduced rates at which this ticket is sold, agrees with the respective companies over whose roads such holder is to be carried, to use the same on or before the expiration of date as cancelled by punch on the margin of this contract, and the holder hereof failing to comply with this agreement, either of said companies may refuse to accept this ticket, or any coupons thereof, and demand the full, regular fare, which the holder agrees to pay. If more than one date is cancelled it will not be received for passage by conductors.” On the margin of this ticket the printed words and figures, “Feb.” “26,” and “1881,” were punched out with a punch which cut a hole through the ticket in the form of a letter L; so that the last day on which the ticket could be used under its terms, was February 26, 1881.

With this ticket in his possession the plaintiff went aboard the regular passenger train of the defendant at the Union Depot in St. Louis, at nine o'clock, P. M., on the day named, February 26, 1881. The testimony is conflicting as to whether his ticket was inspected by any servant of the defendant before the train started. The conductor and a porter of the train testify that it was; and that the conductor told him that it would only be good until midnight, and that he had better go back to the office where he bought it and get it changed. He and a person who went with him to see him off, testify that his ticket was not called for before the train started. Then (with some conflict), the substantial testimony is that after the train had got out of St. Louis, the conductor inspected his ticket and told him that it would not be good after midnight, and that he could not ride beyond Bismark without paying additional fare; that, after some negotiation, by which the plaintiff endeavored to induce the conductor to carry him through to Little Rock, he was put off at a station between midnight and two o'clock in the morning. The conductor and the porter swear that this station was Iron Mountain, a town of five hundred or six hundred inhabitants, where, the conductor swears, he could have got accommodation for the night. The plaintiff, on the other hand, swears that it was at a flag station about a mile and a half north of Arcadia, where there were no houses in sight, no lights visible; and that he was told by a man at the station that if he should go on to Arcadia he would find a fire and a telegraph operator at the station-house, and that they would let him stay there. So, as he testifies, he went on, following the railroad track. It was very dark, and rained heavily. He could see nothing except by the flashes of lightning. While thus groping his way along, he fell through a cattle-guard and hurt his knee. He arrived at Arcadia drenched with rain, and found shelter there. The rain turned to snow before morning. He caught a bad cold. His knee swelled badly. A doctor prescribed for him at Arcadia the next day, but only charged him twenty-five cents for the medicine which he gave him. He also paid twenty-five cents for his dinner at Arcadia. He got back to St. Louis at an additional cost of $2.65; was laid up with the cold and his knee for about six weeks. The physician who prescribed for him in St. Louis, testifies that his knee-cap was injured, though not broken, and that the injury, though not serious, is liable to cause him future trouble.

The testimony as to his falling through the cattle-guard was admitted against the defendant's objection, and an exception was saved.

The court, at the request of the plaintiff, gave the following instructions to the jury:--

“1. Upon the contract upon the ticket read in evidence, the court declares the law to be, that if the holder of said ticket, on the twenty-sixth day of February, 1881, went upon defendant's passenger train at St. Louis, for the purpose of being carried to Little Rock, Arkansas, to which place the said train was about to proceed, and on said date, and before its expiration, offered said ticket to defendant's conductor when called upon by him for his fare, then it was the duty of said conductor to receive said ticket and to carry him on said train to Little Rock. And if the jury believe from the evidence that the plaintiff had purchased said ticket and was the holder thereof, and if, upon said twenty-sixth day of February, after getting upon defendant's passenger train on its way to Little Rock from St. Louis, offered said ticket to defendant's conductor on said date, and before its expiration, and if the jury find that said conductor refused to receive said ticket and refused to permit the plaintiff to be carried by said train to Little Rock, Arkansas, his destination aforesaid, but required and compelled him to leave said train before reaching said place, the defendant is liable in this action, and your verdict should be for the plaintiff.

2. If you find for the plaintiff, you should award him such a sum in damages, as will compensate him for the injury done him in consequence of the defendant's wrongful act; and the court instructs the jury that, in arriving at such sum, the jury may consider plaintiff's loss of time, if any has been proven; his inability to attend to business and to work, if the same is established by the proof; all pecuniary expenses established by the evidence, if such you find has been done; all bodily pain and mental anguish which the evidence shows to have been the immediate result of such wrongful act. And the court further instructs you, if you find from the evidence that plaintiff has been permanently injured in any degree, by the wrongful act of the defendant complained of in this action, you are to consider such permanent injury in estimating the damages.

3. The court instructs the jury that if they believe from the evidence, the plaintiff entitled to damages compensating him for the injuries received, and if they further find from the testimony, that the defendant's conductor, in compelling plaintiff to leave his train, acted in a wanton, reckless, or oppressive manner, then you are at liberty, in addition to such compensatory damages, to award him such further sum as you think right under all the circumstances, as exemplary damages, and in such case, add the same to the amount found for compensation, and the total should be the amount of your verdict, such sum not to exceed the amount claimed in plaintiff's petition.”

The court refused the following instructions offered by the defendant:--

“1. Defendant asks the court to declare the law as follows: That under and by virtue of the contract forming a part of the ticket read in evidence, the plaintiff, as the holder thereof, was only entitled to ride as a passenger...