Mykleby v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 26 June 1888
• Citation: 39 Minn. 54,38 N.W. 763
• Parties: MYKLEBY v CHICAGO, ST. P., M. & O. RY. CO.
• Court: Minnesota Supreme Court

39 Minn. 54

38 N.W. 763

MYKLEBYvCHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Minnesota.

June 26, 1888.

(Syllabus by the Court.)

The complaint alleges that plaintiff was a passenger on defendant's train, and that the agents of defendant in charge of the train willfully, maliciously, forcibly, and violently, and while the train was running at a rapid rate of speed, kicked and ejected him from the steps of the car, on the ground, and under the cars, whereby he sustained personal injuries, for which he seeks damages. Held, that the cause of action thus pleaded was one in tort; the gravamen of the complaint being an intentional and personal assault and battery. The fact that the evidence showed that plaintiff was a trespasser and not a passenger on the train (the wrongful assault being proved as alleged) constituted neither a failure of proof nor a material variance between the complaint and the evidence.

Appeal from district court, Ramsey county; WILKIN, Judge.

Action for damages by Erick P. Mykleby against the Chicago, St. Paul, Minneapolis & Omaha Railway Company for personal injuries. Judgment for defendant, and plaintiff appeals.Lomen & Torrison, for appellant.

J. D. Howe, S. L. Perrin and C. D. O'Brien, for respondent.

MITCHELL, J.

Aside from much irrelevant matter, the allegations of the complaint are that the plaintiff was a passenger, and was received as such by defendant, on one of its coaches to be by it conveyed from Eau Claire to Black River Falls; that, having left the train for a temporary purpose at an intermediate point, he proceeded again go enter one of the passenger coaches, when “the defendant, by its agent and servants then and there in charge of the train, and acting within the scope of their employment, prevented the plaintiff, after he had boarded one of said cars, and gained the steps thereof, from entering the same, and then and there unnecessarily, without cause, willfully, maliciously, forcibly, violently, and brutally, and while said train was moving at a rapid and dangerous rate of speed, pushed, kicked, and ejected this plaintiff from and off the steps of said coach, threw him to the ground under said cars, and caused the wheels of said cars to pass over one of the legs of plaintiff, crushing and mangling it so that it was necessary to amputate the same.”

Upon the trial the plaintiff introduced evidence tending to prove that he was, by defendant's brakeman, kicked and thrown from the steps of the...