Randell v. Chicago, Rock Island and Pacific R. Co.

• Decision Date: 08 June 1903
• Parties: EUGENE L. RANDELL, Respondent, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

76 S.W. 493

102 Mo.App. 342

EUGENE L. RANDELL, Respondent, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1903

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

W. F Evans and Frank P. Sebree for appellant.

(1) The court committed error in refusing the demurrer to the evidence, and also in refusing the peremptory instruction to find for the defendant, requested at the close of all the evidence, for the reasons: First. Mrs. Randell was a trespasser and unlawfully on the train and the defendant owed her no duty, except not to willfully or wantonly injure her and there was no evidence of such act of the defendant. Berry v. Railway, 124 Mo. 223; Farber v Railway, 116 Mo. 81; Purple v. Railway, 51 U. S. App. 564; Lillis v. Railroad, 64 Mo. 494; 1 Thompson Com. Law of Negligence, secs. 207-8; Railroad v. Swope, 115 Ala. 287; Railway v. Gants, 38 Kan. 608; 3 Elliott on Railroads, sec. 1255; Hutchinson on Carriers, sec. 555. Second. Mrs. Randell being a trespasser on the train and it being the right and duty of the conductor to remove her, and as her injuries were received in the struggle which she invited and during her wrongful resistance to her removal, and as the officer did not willfully or wantonly injure her, she can not recover. Hutchinson on Carriers, sec. 593; 1 Thompson Com. Law Neg., secs. 206, 207, 208; 4 Elliott on Railroads, secs. 1637, 1638; Railway v. Gants, 38 Kan. 608; Hall v. Railway, 15 F. 57; Kiley v. Railroad, 189 Ill. 384; Railway v. Shropshire, 101 Ga. 33; Moore v. Railroad, 38 S.C. 1. Third. The action being based on the allegation that plaintiff's wife was a passenger and lawfully upon the train and that her rights as such passenger were violated and abused by defendant, and the evidence proving without contradiction that she was on the train not in the relation of a passenger, but in fraud of defendant's rights and a pronounced trespasser, the plaintiff is precluded from recovering in this action. Logan v. Railroad, 77 Mo. 663; Berry v. Railway, 124 Mo. 223; Feeback v. Railway, 167 Mo. 206. Fourth. The petition alleges that she was lawfully on the train as a passenger and that her injuries were occasioned by an assault and the willful and wanton acts of the conductor; it was necessary for the plaintiff to prove such allegation before he was entitled to recover, and there was no such proof. Miller v. Clark, 78 Mo.App. 447; State v. Boyer, 70 Mo.App. 160; State v. Sears, 86 Mo. 174. Fifth. There was no evidence of any unnecessary or excessive force being used in overcoming her resistance and removing her from the car. Lillis v. Railroad, supra; Railroad v. Olds, 40 Ill.App. 421; Railroad v. Brisbane, 24 Ill.App. 463; Harrison v. Fink, 42 F. 787. (2) The instructions purported to cover the whole case and authorized a recovery without reference to Mrs. Randell's resistance and negligence. This defense, which was pleaded and proved, was wholly omitted from all instructions given to the jury. Link v. Westerman, 80 Mo.App. 593; Schaaf v. Fries, 77 Mo.App. 346; May v. Crawford, 150 Mo. 504. (3) It was prejudicial error for the court to admit in evidence the conversation between the conductor and W. J. Smith. Smith v. Little Pittsburg Co., 75 Mo.App. 177; Lumber Co. v. Krieger, 52 Mo.App. 418.

Frank P. Walsh and John G. Park for respondent.

(1) The rule of the common law, prevalent throughout the United States and thoroughly established by this court and our Supreme Court is, that a carrier in ejecting a trespasser from his cars must use only such force as is reasonably necessary, and is liable for all injuries caused by excessive force or violence. Tanger v. Railway, 85 Mo.App. 28; Turner v. McCook, 77 Mo.App. 201; Holt v. Railway, 87 Mo.App. 203; Farber v. Railroad, 139 Mo. 272; Perkins v. Railroad, 55 Mo. 201; Hachl v. Railroad, 119 Mo. 325. The rule is firmly established by the courts of England, and the Supreme Court of the United States and of our sister States. Steamboat Co. v. Brockett, 121 U.S. 637; Seymour v. Greenwood, 6 H. & N. 359; Ramsden v. Railroad, 104 Mass. 117; Coleman v. Railroad, 106 Mass. 160; Sanford v. Railroad, 23 N.Y. 343; Rounds v. Railroad, 64 N.Y. 138; Railroad v. Pelletier, 134 Ill. 120. This is the rule announced by text-books of approved authority. 3 Elliott on Railroads, sec. 1255, p. 1963; 4 Ibid., sec. 1637, p. 2575; 1 Thompson's Com. on Neg., sec. 206; 3 Ibid., secs. 3209, 3181, 3253, 3254, 3257, 3304; 2 Am. and Eng. Ency. of Law (2 Ed.), 984-986. (2) Before any force was used, it was necessary that Mrs. Randall should be told civilly, to leave, and that she should refuse. 2 Ency. of Law (2 Ed.), 985, note; Commonwealth v. Clark, 2 Met. (Mass.) 23; State v. Taylor, 82 N.C. 554; State v. Burke, 82 N.C. 553; Green v. Goddard, 2 Salk. 641; Thompson v. Berry, 1 Cranch (C. C.) 45; People v. Van Vechten, 2 N. Y. Crim. 291; Robinson v. Hawkins, 4 T. B. Mon. (Ky.) 134. It was a question for the jury whether excessive force was used or not. 3 Thompson's Com. on Neg., sec. 3257; 2 Ency. of Law (2 Ed.), 985, note; Commonwealth v. Dougherty, 107 Mass. 250; Commonwealth v. Clark, 2 Met. (Mass.) 23; State v. Taylor, 82 N.C. 554. (3) There was no fatal variance in plaintiff's case between the pleading and proof. (a) Mrs. Randall, being on defendant's train, was presumptively a passenger. 2 Fetter on Carriers of Pass., sec. 479; 2 Wood on Railroads (Minor's Ed.), 1218; 4 Elliott on Railroads, par. 1578. (b) The testimony that her ticket was invalid came from defendant, and was only a partial defense, tending to justify her ejection. It was no justification for her ejection in an unlawful manner. Tanger v. Railroad, 85 Mo.App. 28; White v. Railroad, 26 W.Va. 800; Mykleby v. Railway, 39 Minn. 54. (c) The gist of the action was the excessive violence used in the ejection of plaintiff's wife. If such violence was used, then it is immaterial whether Mrs. Randell was a passenger, licensee or trespasser. In either contingency plaintiff might recover. Tanger v. Railroad, 85 Mo.App. 28; Mykleby v. Railroad, 39 Minn. 94. Hence, the variance is utterly immaterial, and not ground for reversal. Prewitt v. Railroad, 134 Mo. 615; Wise v. Railroad, 85 Mo. 178; Cash v. Railroad, 81 Mo.App. 109; Hartpence v. Rogers, 143 Mo. 623; Owens v. Railroad, 95 Mo. 181; Anderson v. Railroad, 161 Mo. 411. (d) Defendant waived the claim of variance by failing to file the affidavit of surprisal required by Revised Statutes 1899, section 655. We cite the following decisions of this court: Hayes v. Casualty Co., 72 S.W. 135; Hansberger v. Railroad, 82 Mo.App. 574; Wallich v. Morgan, 39 Mo.App. 469; Brown v. Railroad, 31 Mo.App. 673. (e) Plaintiff and defendant tried the case upon the same theory, viz., that the plaintiff was a trespasser. Hackett v. Underwriters, 79 Mo.App. 16; Pope v. Ramsey, 78 Mo.App. 157; Hazel v. Clark, 89 Mo.App. 78; Lbr. Co. v. Calhoun, 89 Mo.App. 209; Jones v. Habberman, 94 Mo.App. 1; Peck & Co. v. Roofing Co., 70 S.W. 171. (4) The use of excessive force constituted assault, as alleged. 2 Ency. of Law (2 Ed.), 984, 986; State v. Boyer, 70 Mo.App. 160; Yeager v. Berry, 82 Mo.App. 538; Robertson v. Railroad, 152 Mo. 382; Stern v. St. Louis, 161 Mo. 146. (5) The objection to the conversation between the conductor and W. J. Smith, that it was made after Mrs. Randell was off the train, and no part of the res gestae are made now for the first time. The record shows only the general objection, "incompetent, irrelevant and immaterial." This is no objection at all. Creighton v. Mod. Woodmen, 90 Mo.App. 386; Clark v. Loan Co., 46 Mo.App. 248; Guinotte v. Egelhoff, 64 Mo.App. 356; State v. Wright, 134 Mo. 404; Churchman v. Kansas City, 49 Mo.App. 369; Connor v. Black, 119 Mo. 126; Clark v. Conway, 23 Mo. 438; Margrave v. Aasmuss, 51 Mo. 561.

SMITH P. J. ELLISON, J., concurring. Broaddus, J., concurs with Ellison.

OPINION

SMITH, P. J.

The petition in substance alleged that while the plaintiff's wife, Mattie E. Randell, was a passenger in a car of one of defendant's trains, that the conductor of that train at the city of Topeka in the State of Kansas, wrongfully, wantonly and without any just reason or excuse, and in violation of the rights of his said wife as a passenger, forcibly and violently committed an assault upon her, and with insult and injury and great unnecessary violence expelled her from the train and threw her upon the ground, in consequence of which she suffered bodily injury to her spine and limbs and great physical injury to her nervous system, etc., etc., whereby he was damaged, etc.

The answer was a general denial coupled with a plea of contributory negligence. There was a trial resulting in a judgment for plaintiff, and defendant appealed.

It appears from the evidence that one Rooney was a passenger conductor in defendant's employ whose run was on that part of the railway between Kansas City and Belleville Kansas. It further appears that at 11 o'clock on the fifth day of September, 1899, one of defendant's passenger trains from Denver, Colorado, arrived at Belleville station where said Rooney took charge of it in the capacity of conductor, and that he found on that train a lady accompanied by a little boy five or six years old, the former of whom was plaintiff's wife. After the train had left Belleville, Rooney demanded of Mrs. Randell, plaintiff's wife, the production of her ticket; and in response to this demand she produced an excursion ticket from Chicago to Los Angeles and return which had expired by its own limitation the preceding day. Rooney declined to accept the ticket, telling her that it was a "dead ticket;" that she was not entitled to ride on it, and that she must pay...