Hicks v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1878
• Citation: 68 Mo. 329
• Court: Missouri Supreme Court
• Parties: HICKS et al. v. HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

68 Mo. 329

HICKS et al.

v.HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

The plaintiff asked the following instructions, which were given by the court:

1. If the jury find from the evidence that the plaintiff, Mrs. Hicks, purchased of defendant a ticket for herself and two infant children for the purpose of being carried as a passenger over defendant's railroad from Kansas City to Utica, Missouri, and that defendant then and there received Mrs. Hicks with her said children on its train as a passenger aforesaid, and that defendant, by its conductor, servants or employees, compelled Mrs. Hicks and her children to leave said train at Breckenridge, Missouri, and before reaching her destination, then such act on the part of defendant was unlawful, and the jury must find for plaintiffs.

2. If the jury find for plaintiffs, they will, in estimating the damages, take into consideration all the facts and circumstances of the case given in evidence, and give such amount as they may consider an adequate recompense for the injury sustained by plaintiff, Mrs. Hicks; and if the jury find from the evidence that Mrs. Hicks was put off the train on which she was riding before reaching Utica, Missouri, by defendant, its servants, agents or employees, and that the same was done in a willful, wanton or reckless manner, and against the will of Mrs. Hicks, then the jury may give, in addition to what they may consider an adequate recompense for the injury aforesaid, such other damages as may serve for a wholesome example to others in like cases.

3. The defendant having received Sarah A. Hicks, one of the plaintiffs, and her two infant children, into their passenger cars at Kansas City, Missouri, she first having purchased her ticket entitling her to be carried from said Kansas City, Missouri, to Utica, Missouri, were bound to so carry her in said passenger car as a passenger.

4. If the plaintiff, Sarah A. Hicks, and her two infant children, were ejected from defendant's passenger car, where she and her children had a right to be, at Breckenridge, Mo., while being conveyed by defendant from Kansas City, Missouri, to Utica, Missouri, on or about the 9th day of September, 1874, she and her children not being permitted to travel further on said passenger train, then the jury must find for plaintiffs.

5. The unlawful ejectment of plaintiff, Sarah A. Hicks, from defendant's passenger car, where she as a passenger had a right to be, any space of time, entitles her to a judgment.

6. The jury are instructed that the plaintiff's right to recover a judgment against defendant is not affected by the length of time she had to wait for another train.

The defendant asked the following instructions, of which the court gave the first and second, and refused the third, fourth, fifth and sixth:

1. The jury are instructed that although they may believe from the evidence that plaintiff did purchase a ticket from Kansas City to Utica, Missouri, and that at Breckenridge the plaintiff was requested and did take another train at defendant's instance, yet the plaintiff cannot recover unless the jury believe by said acts of defendant the plaintiff, Sarah Ann, was actually damaged.

2. Before the jury can find for plaintiff a greater sum than she was actually damaged, they must find that the defendant used physical force, or such threats of violence as to put the plaintiff in fear of violence to her person, or the persons of her children, if she did not abandon the passenger car on which she was riding and take a freight train.

3. In this suit the plaintiff is not entitled to punitive damages, or smart money, and the jury can only find actual damages sustained.

4. Unless the jury believed that the plaintiff received actual damage at the hands of defendant, in Livingston county, they must find for defendant.

5. Although the jury may believe from the evidence that the plaintiff, Sarah, was a passenger on defendant's railroad, and held a ticket from Kansas City to Utica, and that she was compelled to get off the passenger train at Breckenridge and take a freight train, yet they cannot find for plaintiff unless they believe from the evidence that plaintiff was actually damaged, and if they find for plaintiff they can do so only in the actual amount plaintiff was damaged.

6. If the jury believe from the evidence that Utica station was not a junction of another railroad with that of defendant's road, then defendant had a right to make regulations as to what trains should stop at said Utica station, and if it was one of the regulations of defendant that train No. 4 did not stop at said Utica station, then defendant had a right to transfer plaintiff to some train that did stop at said station, and if the jury believe from the evidence that plaintiff was transferred to another train and carried to said Utica station, without unreasonable delay, they will find for the defendant.

Geo. W. Easley for appellant.

The sale of the ticket was not a contract to carry on any particular train, but a contract to carry within a reasonable time in accordance with defendant's reasonable regulations. It was defendant's duty to the public to run its trains according to its announced regulations; and it was the duty of Mrs. Hicks to inform herself when, and upon what train she could go to Utica in accordance with these regulations, and if she failed to do so, or made a mistake, she was without remedy. 2 Redfield on Ry., (5 Ed.) p. 283, § 5; Pierce's Am. R. R. Law, 489; Pittsburgh, &c., Ry. Co. v. Nuzum, 50 Ind. 141; Cheney v. Boston & Maine R. R. Co., 11 Met. 121; Boston & Lowell R. R. Co. v. Proctor, 1 Allen 267; Johnson v. Concord R. R. Co., 46 N. H. 213; Southern R. R. Co. v. Kendrick, 40 Miss. 374.

2. A conductor cannot be guilty of malice and wantonness when he is, in a proper manner, carrying out the regulations that his company has rightfully made. Goetz v. H. & St. Jo. R. R. Co., 50 Mo. 472; Kennedy v. North Mo. R. R. Co., 36 Mo. 364; Philadelphia, &c., R. R. Co., v. Quigley, 21 How. 202.

3. By plaintiff's fifth and sixth instructions the case was made to turn upon the loss of time by the wife. For none of these causes could the wife recover. These damages pertained to the husband. Daly v. Houston, 58 Mo. 361; Smith v. City of St. Joseph, 55 Mo. 456; Barnes v. Martin, 15 Wis. 240; Hill on Torts, (2 Ed.) p. 694; 1 Bishop on Married Women, § 913; Redfield on Carriers, §§ 409, 410; Pomeroy on Remedies, § 242.

W. N. Norville and L. T. Collier for respondent.

1. The suit was brought in the proper county, and the court below committed no error in overruling the motion to exclude all evidence under the petition for want of jurisdiction. 1 Wag. Stat., § 28, p. 294; Dixon v. H. & St. Jo. R. R. Co., 31 Mo. 410; Slavens v. South P. R. R. Co., 51 Mo. 308; Mikel v. St. Louis, K. C. & N. R. R. Co., 54 Mo. 145.

NORTON, J.

This suit was instituted in the Livingston county circuit court for damages. The petition alleged the incorporation of defendant, and that, on the 9th day of September, 1874, Mrs. Sarah Hicks, wife of her co-plaintiff, F. M. Hicks, and her two infant children, were received by defendant, into its passenger train, at Kansas City, Missouri, to be carried to Utica, Missouri, she having purchased a ticket for passage between said points; that on the arrival of said train at Breckenridge, a station about ten miles west of Utica, the defendant, by its conductor and agents, by force, and against the will, consent and protest of Mrs. Hicks, ejected and put her out of said passenger train at about the hour of ten o'clock at night, where she remained exposed to the cold for about one hour, when a freight train arrived on which she took passage and was carried to Utica; that in consequence thereof, she and her children were greatly exposed and made sick, and that she had sustained damage in the sum of $1,000. Except as to the incorporation of defendant, the answer contained a specific denial of the allegations of the petition. On a trial of the cause plaintiffs obtained judgment for $700--$200 of which was remitted--and from this judgment defendant has appealed, and assigns for error the action of the court in refusing to receive legal evidence, and in giving improper and refusing proper instructions.

I. During the progress of the trial defendant asked witness McCoy who was telegraph operator at Utica, what defendant's regulations were as to passenger train No. 4 (which was the train on which Mrs. Hicks took passage) stopping at Utica station? The court refused to allow the witness to answer.

1. RAILROADS: damages: evidence, not relevant to the issues.

It will be observed that the answer of defendant does not set up any regulation of the company requiring said tram not to stop at said station. It only traverses the petition and puts in issue the facts therein alleged. The evidence offered was not relevant to any issue made by the pleadings. If defendant intended to rely upon a regulation of the company, showing that the...