Powell v. St. Louis & S. F. R. Co.

• Decision Date: 21 June 1910
• Citation: 229 Mo. 246,129 S.W. 963
• Parties: POWELL v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Supreme Court

129 S.W. 963

229 Mo. 246

POWELL v. ST. LOUIS & S. F. R. CO.

Supreme Court of Missouri.

June 21, 1910.

1. CARRIERS (§ 383)—EJECTION OF PASSENGERS —ISSUES—EVIDENCE.

In an action for the death of a passenger, while on the track after wrongful ejection from a train, evidence held to authorize submission to the jury of the issues whether plaintiff boarded the train with the intention of becoming a passenger, and whether, before the trainmen attempted to eject him, he tendered his fare to his destination.

2. CARRIERS (§ 238)—"PASSENGER"—WHO IS.

A "passenger" is one who enters the vehicle of the carrier with the intention of paying, in money, the usual fare for his transportation, or who is supplied with a ticket or pass entitling him to ride to a given point.

3. CARRIERS (§ 276)—PASSENGERS—PRESUMPTIONS.

A constant traveler on a line of railroad is presumptively chargeable with knowledge of the points at which trains on the line will stop.

4. EVIDENCE (§ 134)—RELEVANCY—INTENT.

Where the issue involves one's intent in doing an act, evidence of other acts of kindred character is admissible to illustrate or establish the intent of the particular act.

5. EVIDENCE (§ 155)—COMPETENCY—ADMISSION OF SIMILAR EVIDENCE FOR ADVERSE PARTY.

Where, in an action for the death of a passenger while on the track after his wrongful ejection from a train, plaintiff's counsel, on the cross-examination of the conductor ejecting the passenger, brought out new matter as to whether the passenger had previously been on the carrier's trains, and as to whether he had paid his fare, to show that the passenger had entered the train with the intention of becoming a passenger, plaintiff could not object to the introduction of testimony of the conduct of the

passenger immediately preceding the act complained of.

6. CARRIERS (§ 381)—PASSENGERS—WRONGFUL EJECTION—EVIDENCE.

Where, in an action for the death of a passenger while on the track after his wrongful ejection from a train, the evidence on the issue whether the passenger intended to become a passenger by paying fare was conflicting, evidence of the conduct of the passenger in taking a train immediately before entering the train from which he was ejected and riding thereon without payment of fare was admissible.

7. DEATH (§ 103)—ACTION FOR — QUESTION FOR JURY—PROXIMATE CAUSE — WRONGFUL EJECTION OF PASSENGER.

In an action for the wrongful ejection of a passenger, evidence held to justify the submission to the jury of the issue whether the proximate cause of the death of the passenger was his wrongful ejection.

8. DEATH (§ 103)—ACTION FOR — QUESTION FOR JURY—CONTRIBUTORY NEGLIGENCE.

In an action for the death of a passenger while on the track after his wrongful ejection from a train, evidence held to require submission to the jury of the issue of the passenger's contributory negligence in walking back from the point where he was removed to the station at which he boarded the train.

Gantt, Valliant, and Woodson, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Danl. D. Fisher, Judge.

Action by Nannie C. Powell against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This cause is pending in this court upon appeal by the defendant railroad company from a judgment of the circuit court of the city of St. Louis in favor of the plaintiff in the sum of $5,000.

This is an action to recover damages for the death of plaintiff's husband, W. B. Powell, which occurred at Pacific, Mo., on July 23, 1905, as a result of being struck by a passenger train operated by the defendant. At the time of the death of plaintiff's husband he resided with his wife in the city of St. Louis. Pacific is situated 36 miles southeast of St. Louis, and both the defendant railway company and the Missouri Pacific Railway Company pass through the town of Pacific. Plaintiff's husband was struck by the west-bound train of the defendant near where Elm street joins the defendant's tracks in Pacific while he was walking between the main tracks of defendant in a westerly direction with his back to the engine that struck him. The petition of the plaintiff embraced three counts, but at the close of the plaintiff's case the circuit court held that the evidence was insufficient to justify the submission of the cause to the jury upon either the second or third counts of the petition; hence the cause, when all the evidence was heard, was submitted to the jury upon the first count alone. This count in substance alleges that plaintiff was the widow of William B. Powell, and that the defendant was at all times mentioned, and is now, a railroad corporation doing business as a common carrier in and by virtue of the laws of this state, and operating a steam railroad from the city of St. Louis to and through the town of Pacific, in the county of Franklin; that on the 23d day of July, 1905, defendant received her husband at the town of Pacific as a passenger upon one of its trains, and for valuable consideration, then and there paid by the said William B. Powell to defendant, agreed to carry him safely to the city of St. Louis; that shortly after said William B. Powell had become a passenger on said train of defendant, the conductor in charge of said train came to said Powell and asked him for his fare; that said Powell tendered said conductor a railroad ticket issued by defendant, the destination of which was St. Louis, which ticket the defendant's conductor received and accepted, and, after having accepted the same, then demanded of said William B. Powell further compensation as passenger on said train, which compensation the said Powell offered and agreed to pay and actually tendered to said conductor in good and lawful money; that said conductor refused to accept said sum of money so demanded by him and so tendered to him by the said Powell, but then and there ordered said Powell to get off of the said train; that said Powell again offered to pay and again tendered said conductor said sum of money as additional fare for conveying and carrying him as a passenger from Pacific to St. Louis; that thereupon said conductor summoned other employés of the defendant, members of the train crew in charge of said train, and the said agents and servants of defendant with force and violence willfully and wrongfully ejected said William B. Powell off and from said train, and plaintiff avers that by reason thereof and as a direct result of such wrongful ejectment that said William B. Powell was left by the defendant on its right of way and in a place of great danger, a great distance from the town of Pacific or any other station or usual stopping place, and a great distance from any dwelling house or light or platform, and that the time of such ejectment was 9:30 o'clock at night, and it was very dark at said place where said Powell was ejected, and there was a steep incline and ditch on either side of the railroad tracks of defendant, and there was no house or light near said place to give the said Powell information whereby he might find a place of safety that while her said husband was in the exercise of ordinary care in attempting to extricate himself from said place of danger and reach a place of safety, that at and near said place of ejectment, and shortly thereafter, one of defendant's trains, in charge of the employés of the defendant, struck said William B. Powell with such great force and violence, while running at a rapid rate of speed, as to throw him against the ground with such force and violence as to inflict mortal injuries from which said husband died shortly thereafter, without any fault or negligence on his part. Plaintiff averred her damages to be the sum of $10,000.

The answer was a general denial, and for a further defense the defendant admitted that it was then, and was at all times in said first count mentioned, a railroad corporation doing business as a common carrier in and by virtue of the laws of this state; that on or about the 23d of July, 1905, said William B. Powell received injuries which resulted in his death, but the defendant denies that such injuries or any of them and the death of said deceased were caused by or resulted from any carelessness, negligence, or wrongful act, omission, or default of the defendant or any of its agents, servants, and employés; but, on the other hand, the said death of the deceased was caused by his own carelessness and negligence; that at the time he received his said injuries and death he was negligently and unlawfully walking and trespassing upon the railroad roadbed and property of the defendant, and negligently and carelessly failed to look or listen for approaching trains and cars, and negligently failed to avoid being struck or injured by any train upon said railroad, by reason of which negligence and unlawful conduct he received said injuries from which his death resulted.

The testimony developed upon the trial of this cause as disclosed by the record is quite voluminous, and we do not deem it essential to reproduce it in detail. It will suffice for the purpose of enabling us to determine the legal propositions, to briefly indicate the facts which the testimony tends to establish.

The record discloses that plaintiff's husband, William B. Powell, on the evening of the accident, took passage on one of defendant's trains leaving Union Station at 8:21, and remained upon said train until it reached Pacific, where he alighted, and at about 9:30 p. m., which obviously was only a few minutes after he alighted from the other train going west, boarded an east-bound train of the defendant railway company and took a seat in a coach about the third seat from the door on the right side of the car. The testimony tends to show that shortly after the train pulled out of Pacific the conductor approached Mr. Powell. Upon the conductor first calling for a ticket or fare Mr. Powell paid no attention to...