Schmidt v. The Kansas City Western Railway Company
| Decision Date | 07 February 1914 |
| Docket Number | 18,606 |
| Citation | 91 Kan. 498,138 P. 643 |
| Parties | FRED SCHMIDT, Appellee, v. THE KANSAS CITY WESTERN RAILWAY COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1914
Appeal from Leavenworth district court; JAMES H. WENDORFF, judge.
Judgment affirmed.
PERSONAL INJURIES--Ejected from Street Car--Wantonly Injured. While a passenger upon a railroad should, upon the request of the conductor, pay fare or leave the train and make no forcible resistance, although he has already paid his fare, yet if he does resist, and in ejecting him he is wantonly injured by the company's employees, acting in the scope of their employment, the company is liable.
C. F Hutchings, of Kansas City, Mo., and J. McCabe Moore, of Kansas City, for the appellant.
Lee Bond, and M. N. McNaughton, both of Leavenworth, for the appellee.
OPINION
This action was brought by a passenger upon the defendant's railway to recover damages for personal injuries suffered through the alleged wanton conduct of its conductor and motorman in ejecting him from a car.
The plaintiff, a paper hanger, fifty-three years of age, entered the car about ten o'clock in the evening, at a street intersection in Kansas City, to go to his home at Northwest crossing. At Welborn, while being ejected from the car, he was injured upon his head, back and shoulders by colliding with the street pavement. Evidence on his part tended to prove facts as follows: The conductor took from his book of commutation tickets a ticket good for a continuous ride to Northwest crossing. After changing cars at Chelsea Park, the conductor of the car to which the change was made called for his fare and was informed that his ticket had been taken up on the first car. The conductor insisted that another ticket should be given up or fare paid, but the plaintiff declined to do so. After some parleying the conductor passed on, making collection from other passengers, and then returned to the plaintiff and again demanded a ticket or fare. The plaintiff still refused. The car was stopped at Welborn, and the conductor then called to his assistance the motorman, who seized the plaintiff by the collar to eject him. He resisted removal by holding to the back of the seat in front of him as best he could while holding some parcels under each arm, and protesting that he should not be put off, because he had paid his fare. The motorman, however, forcibly took him to the platform at the rear of the car, kicked and pushed or threw him violently to the ground. His head and shoulders struck the pavement, causing severe injuries. He was left unconscious, lying in the roadway, while the car moved on a short distance. Upon an exclamation of a passenger that the man had been killed, the conductor stopped the car, and with the motorman went back and pulled the plaintiff, then lying near the track, to the roadside and left him there, apparently still unconscious. They then returned to the car, which moved on. Sometime afterwards the plaintiff's son came with a wagon and took him home.
On the other hand, evidence was given tending to show that the plaintiff was intoxicated; that the first conductor did not take up his ticket, and when the payment of fare or a ticket was demanded he became abusive, and when the motorman was called used vile and profane language, created a disturbance, and fought the motorman; that the employees used no unnecessary force, and ejected him only after he had repeatedly refused to give up a ticket or pay fare or leave the car, and that when forced out to the platform he suddenly broke loose from the hold of the motorman, who was about to lead him down the steps, and this caused him to fall to the ground.
The material facts found by the jury in answering special questions are:
. . . .
The jury were instructed that:
"The plaintiff had no right to insist on riding on the car of the defendant company . . . without giving him the proper ticket or producing evidence that he had paid his fare, or without paying his fare, in violation of the regulations of the company; he had no right to resort to force to compel the performance of the contract, and when he failed and refused at the request of the conductor to either give his ticket or pay his fare to the conductor or produce some evidence in accordance with the regulations of the company that he had paid his fare, he should have gotten off the car when ordered by the conductor to do so; and he had no right to invite force in his rejection or removal, by refusing to leave the car when so ordered by the conductor, merely to make a case against the company, or to increase his damages."
The court also instructed the jury that if the plaintiff so refused to pay fare, or produce evidence of previous payment, and refused to leave the car, stopped for that purpose, when he was told to get off, that he then became a trespasser and the conductor or motorman had the right to eject him,
It is not disputed that the plaintiff was in the wrong in refusing to pay fare and in resisting removal from the car. The rule, as stated in the instructions, that a passenger should in such a situation pay the fare demanded or leave the train when ordered to do so, when stopped at a suitable place for that purpose, is not questioned by the plaintiff. (A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608, 17 P. 54; A. T. & S. F. Rld. Co. v. Hogue, 50 Kan. 40, 31 P. 698; Chase v. Railway Co., 70 Kan. 546, 79 P. 153; Mosher v. St. Louis &c. Railroad Co., 127 U.S. 390, 32 L.Ed. 249, 8 S.Ct. 1324; Hale on Bailments & Carriers, § 109; Hutchinson on Carriers, § 580.)
The plaintiff rests the recovery upon the principle that although he was in the wrong or even a trespasser after refusing to pay fare, still the company had no right to inflict wanton injuries in ejecting him. In Railroad Co. v. Day, 68 Kan. 726, 75 P. 1021, the rule, supported by citations of other decisions of this court, is stated as follows:
"The rule of liability in such cases is, that a railroad company is liable in ejecting trespassers from its trains when in doing so it is guilty of wilful or malicious acts amounting to wanton negligence." (p. 730.)
The charge of wanton and willful injury was made in the petition, that issue was plainly submitted in the instructions, and was determined by the jury, by the general verdict, in favor of the plaintiff upon competent evidence.
Several errors are alleged. An objection was made to an affidavit read in evidence which had been taken and filed pursuant to section 350 of the civil code, but nothing substantial appears in the objection.
Error is alleged...
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