Jackson v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1885
• Parties: JACKSON v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

87 Mo. 422

JACKSON

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Butler Circuit Court.--HON. R. P. OWEN, Judge.

REVERSED.

Geo. H. Benton for appellant.

(1) There is no substantial conflict in the evidence in this case, and the court should, as a question of law, have declared to the jury that the plaintiff could not recover, as requested to do by defendant at the close of plaintiff's evidence and of the whole case. Powell v. Mo. Pac. Ry. Co., 76 Mo. 80; Henry v. St. Louis, K. C. & N. Ry. Co., 76 Mo. 293; Mali v. Lord, 39 N. Y. 381; Edwards v. London, etc., Ry. Co., L. R. 5 C. P. 445; Allen v. London, etc., Ry. Co., L. R. 6 Q. B. 65; Poulton v. London, etc., Ry. Co., L. R. 2 Q. B. 534; Porter v. Chicago, etc., Ry. Co., 41 Iowa, 358; Wright v. Wilcox, 19 Wend. 343; Little Miami River v. Wetmore, 19 Ohio, 110; Snyder v. Ry. Co., 60 Mo. 413; Cousins v. H. & St. J. Ry. Co., 66 Mo. 572; Vinton v. Middlesex Ry. Co., 11 Allen, 304; Thompson on Carriers, 1, 10; Marshal v. Ry. Co., 78 Mo. 616; Frederick v. H. &. H. & O. R. R. R. Co., 37 Mich. 342; Hall v. Memphis Ry. Co., 9 Am. & Eng. Ry. Cases, 348; Yorton v. M. L. S. & W. Ry. Co., 6 Id. 322; 7 Mass. 523; Dwarris on Statutes, 193; Beauchamp v. Mining Co., 50 Mich. 163; s. c., 4. Am. Rep. 30; Vawter v. Railroad Co., 84 Mo. 679; Clemens v. Railroad Co., 53 Mo. 366. (2) The petition does not state facts sufficient to constitute a cause of action. See authorities, supra. (3) The court erred in excluding proper testimony offered by defendant and admitting evidence introduced by plaintiff, cases cited, supra. (4) The court erred in giving instructions for plaintiff and refusing instructions asked by defendant. See cases cited under first point. (5) The verdict is excessive and contrary to defendant's fifth instruction given by the court. Jones v. Hannover, 55 Mo. 462: Wagner v. Dette, 2 Mo. App. 254; 2 Thompson on Neg. 1289; State v. Baltimore Ry. Co., 24 Md. 84; Blake v. Midland Ry. Co., 18 Q. B. 93; Chicago v. Major, 18 Ill. 349; Penn. Ry. Co. v. McClosky, 23 Pa. St. 526.

Chapman & Kerr for respondent.

HENRY, C. J.

This suit was instituted in the Butler circuit court, by plaintiff, to recover damages for the death of her husband, alleged to have been occasioned by defendant's wrongful act, in receiving her husband on its train of cars, against his will and the protest of plaintiff, while he was in a mortally wounded condition. On a trial she had a judgment for $500, from which this appeal was taken. The cause was tried on an amended petition, to which a demurrer having been overruled, defendant filed an answer, alleging, in addition to a general denial, that the deceased was a fugitive from justice, and had been arrested by an officer and was wounded in the effort to arrest him. That the officer brought him to the town of Dexter, and procured a ticket for him and conveyed him, as a prisoner, on defendant's train to Clay county, in the state of Arkansas. That defendant received him on its train, and, without any negligence, carried him to Clay county, Arkansas. That his death was caused by the severe wound inflicted upon him, as aforesaid.

The following is substantially the evidence adduced on the trial: Sol. G. Kitchen testified, that he saw Andrew Jackson, the deceased, at the depot in Dexter, on the 8th or 9th of August, 1879. He was seriously wounded. Two or three hours after he was brought to the depot, the train arrived, and, as soon as it stopped, witness met Mr. Kelly, the conductor, on the platform, and told him the condition of Jackson, and that there would be an effort to put him on the train, and appealed to him, in behalf of Jackson and his wife, not to allow it, because they had no authority to do so. That he had called for their authority, and they refused to produce any. Three men appeared to have charge of him. After the train had been at the depot some four or five minutes, they took hold of the pallet on which he was lying, and carried him up to the baggage car, gave him a swing and threw him up into the baggage car.

Mr. Davidson testified that he saw Jackson at Poplar Bluff, at the depot lying on the platform, wounded; understood, at the time, that Jackson was taken forcibly, against his will, and witness was applied to by some persons to arrest the parties for kidnapping. Witness was prosecuting attorney of the county at that time. Barton Turner, sheriff of Butler county at the time, saw Jackson at the depot wounded; saw him put on the train. He seemed to go unwillingly. Said he would like to be retained there, in Butler county, on some charges against him there. Heard Chapman talking to Barham who had Jackson in charge, and the conductor was there part of the time, remonstrating against taking him and asking by what authority they were taking him. E. R. Milton also saw Jackson lying in the car, and heard him say: “Boys are you going to let them take me?” and the man in charge said: “They can't help themselves.” It was also proved that Jackson died at Boydsville, Arkansas, on the twelfth or fifteenth of August, 1879, and a physician testified that the probable effect of a gun-shot wound in the left breast and abdomen, and thigh, would result in death. It would be hazardous to transport him any distance.

An instruction, in the nature of a demurrer to the evidence, was overruled by the court, and defendant introduced as a witness Barham, who arrested Jackson. He testified to the arrest and wounding of Jackson, in Stoddard county Missouri. After the train pulled out from Dexter, and had gone seventy five or eighty yards, the conductor, Kelly, came to witness and said; ““I can't carry that man.” Witness enquired why, stating that he, witness, had money to pay his fare, was an officer and had his papers. Thinks he showed him his badge, was not positive, but knew he had it. That portion, in italics, was excluded but should have been admitted. Conductor Kelly pulled the bell rope and the train stopped, but again went on. None of the men who assisted in putting Jackson on the train were connected with the train. Witness had no writ. Badge he showed Kelly was one witness had from the secret service company. He also had a badge, as city marshal of Malden, Mo.

Kelly, the conductor, testified that as he stepped from the rear car of the train, he met Col. Kitchen who said they were taking off a party against his will, and he had doubts whether the officers had the proper papers. Witness told Kitchen if the party was an officer, he could do nothing, but would give him plenty of time to get an officer to have him taken off, if there was anything wrong. Witness said he did not see Jackson at all. As the train started, he stepped onto the baggage car, saw the man lying down and pulled the bell rope. Barham then said: “I am the officer and have him in charge.” Threw back his coat and showed his badge as marshal, and stated that he had the papers. Witness then started the train again.

The court for plaintiff instructed the jury as follows:

“1. If the jury believe from the evidence that plaintiff was the wife of Andrew Jackson; that defendant, its agent, officers and employes took and carried the said Andrew Jackson upon one of its cars from the town of Dexter, Missouri, by way of Poplar Bluff, Missouri, into Clay county, Arkansas, against his will and consent of himself and plaintiff, and that he was dangerously sick and wounded at the time of being so taken; that his condition was known to defendant's employes and agents who were conducting and managing said car and train; that the conductor in charge of said train was not only informed of his condition and knew that he was being so taken against his will and the consent of plaintiff, and that he was so taken and so transported from said town of Dexter to said Clay county, thereby causing or hastening his death, they should find for plaintiff any sum, not exceeding five thousand dollars, to which plaintiff has shown herself entitled; and it is no excuse or mitigation of defendant's liability that others aided and assisted defendant, its employes and agents in so taking and removing plaintiff's said husband from said town of Dexter to said Clay county as stated in her petition.”

“2. The court further instructs the jury that, if defendant had any authority of law for taking and removing plaintiff's husband, that after plaintiff had...