Sira v. The Wabash Railroad Company
| Citation | 21 S.W. 905,115 Mo. 127 |
| Parties | Sira, Appellant, v. The Wabash Railroad Company |
| Decision Date | 25 March 1893 |
| Court | United States State Supreme Court of Missouri |
Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
John M Barker and S. S. Nowlin for appellant.
(1) The court erred in excluding proper and legal evidence offered by the plaintiff. The defendant is liable for the acts of its porter. Williams v. Palace Car Co., 4 South. Rep. (La.) 85. The defendant and the trial judge tried this case on the theory that the plaintiff, the conductor and the train were all to be governed by certain rules of the defendant prohibiting the stopping of the train at Benton City. This was erroneous. McGee v. Railroad, 92 Mo 208; Marshall v. Railroad, 78 Mo. 660; Logan v Railroad, 77 Mo. 668; Hicks v. Railroad, 68 Mo. 329; 2 Wood's Railway Law, sec. 355, p. 1413; pp. 1044, 1045. (2) The court erred in sustaining the defendant's demurrer to plaintiff's evidence. It was one on the assumption that the defendant's rules forbade the train stopping at Benton City, and that the injuries were too remote; the injuries in this case were the direct and proximate result of the acts of defendant in expelling the plaintiff from the train, in breaking its contract as a carrier of passengers. The conductor, the negro porter and Dusenberry wrongfully caused the plaintiff to leave the train and to be injured. Spohn v. Railroad, 101 Mo. 417; 92 Mo. 209; Evans v. Railroad, 11 Mo.App. 463; 21 Mo.App. 99; Hurst v. Railroad, 36 Miss. 660. The question of remoteness was for the jury. Clements v. Railroad, 53 Mo. 366; 11 Mo.App. 463; 21 Mo.App. 188. The possibility of an injury as a consequence of a wrong act is of sufficient proximation to make defendant liable. Childers v. Yourie, Tenn. Rep. (Meigs) 561; Topeka v. Tuttle, 5 Kan. 312; Wellington v. Oil Co., 104 Mass. 64. The defendant is liable for Dusenberry's assault. Squibb case, 2 W. Black. 892; Griggs v. Fleckenstein, 19 Ga. 81; Swelling v. McDonald, 14 Allen (Mass.), 292; Forney v. Guldmacher, 75 Mo. 113; Bristal M. Co. v. Gridley, 28 Conn. 201. The defendant put plaintiff out of the car, a child in a strange land, against the contract, in the dark, against her will, in the power and custody of a bad man, with suspicious circumstances, tending to criminate the porter, conductor and Dusenberry all together acting in concert; and "the nature of the act, the time and place when and where it was done, make it highly probable that some personal damage would immediately happen thereby." Under this condition of fact this court has held an injury as the proximate result of the defendant's act. 75 Mo. 113, approving the celebrated case of Scott v. Shepperd, 3 Wilson, 403. (3) Defendant was liable for putting plaintiff off at the wrong place without regard to any injury. Railroad v. Milligan, 50 Ind. 392; McGinnis v. Railroad, 21 Mo.App. 399; Curtis v. Railroad, 12 Upper Can. 89; Fixe v. Railroad, 88 Ind. 381; 64 Miss. 80. (4) The carrier is the protector of each passenger against the malice and brutality of his fellow travelers (Railroad v. Burke, 53 Miss. 200; Railroad v. Hinds, 53 Pa. St. 512) and must use every power with which it is invested to transport the passenger safely to his destination. Craker v. Railroad, 36 Wis. 657, and cases cited; Nieto v. Clark, 1 Clifford 145; Commonwealth v. Power, 7 Met. 596. It was the respondent's duty by its conductor to protect appellant against likelihood of injury. Stephens' case, 29 Vt. 160; 53 Pa. St. 512. The defendant placed the plaintiff in her peril, and is answerable for it. Stokes v. Saltonstall, 13 Pet. 114; Flint v. Norwich & N. Y. T. Co., 34 Conn. 554. The respondent is answerable for all injuries befalling the appellant after she was compelled to leave the train, while attempting to go to her destination.
F. W. Lehmann and George S. Grover for respondent.
(1) The conductor was not required to stop the train at Benton City, even though an agent of the defendant had directed the plaintiff to the train as one that would stop at that place. Woods' Railway Law, sec. 355; Logan v. Railroad, 77 Mo. 663; Marshall v. Railroad, 78 Mo. 610. (2) Even though plaintiff was induced to leave the train by the wrongful request or insistence of the conductor, that was not the proximate cause of the injuries complained of. Moak's Underhill on Torts, 16; Cooley on Torts, 73; Addison on Torts, 40; Wharton on Negligence, 138; Phillips v. Dickerson, 85 Ill. 11; McClellan v. Railroad, 94 Ind. 276; Morrison v. Davis, 20 Pa. St. 171; McCleary v. Railroad, 3 Neb. 44; Bosch v. Railroad, 44 Iowa 402; Brown v. Railroad, 20 Mo.App. 222; Francis v. Transfer Co., 5 Mo.App. 7; Henry v. Railroad, 76 Mo. 288; Ashley v. Harrison, 1 Esp. 49; Railroad v. Staley, 40 Ohio St. 118; Limfin v. Lowry, 34 N.W. 22; Shurtleff v. Parker, 130 Mass. 293; Ward v. Weed, 7 Bingh. 211; Alexander v. Town of Carlisle, 17 N.E. 200; Barton v. Agricultural Society, Albany Law Journal (Wis.), p. 371. (3) The suggestion of conspiracy between the trainmen and Dusenberry is entirely without support in the evidence. (4) The trainmen had no reasonable ground for apprehending that Dusenberry intended any harm to Miss Sira, and the defendant, therefore, is not liable as for an omission of duty because of their failure to warn or protect her against him. Pillsbury v. Railroad, 123 Ill. 9; Rorer on Railroads, 958; Thompson on Carriers, 29; Hutchinson on Carriers, 548-552; Putnam v. Railroad, 55 N.Y. 108; Baxter v. Roberts, 44 Cal. 187.
The suit is for damages on account of the alleged wrongful expulsion of plaintiff from one of its trains by the employes of defendant.
The petition charges, in substance, that on the second of November, 1888, defendant sold plaintiff a coupon ticket, which entitled her to transportation from the state of Virginia to St. Louis, Missouri, and from St. Louis to Mexico, Missouri, over the road of defendant, but that her destination was Benton City, and defendant, when it sold her the ticket, agreed to let her off at her destination; that on the fourth of November, 1888, at the city of St. Louis, defendant further agreed, in consideration of the purchase of said ticket, to safely and with dispatch transport plaintiff on that night to said Benton City, and on the journey would protect her from harm; that defendant, however, did not keep said agreement, but after receiving plaintiff as a passenger, and before she reached her destination, by its servants and agents in charge of the train, withdrew all protection from her, and wrongfully, wantonly, knowingly, recklessly, etc., expelled her, against her consent, from the train in the cold and darkness, about midnight, at the town of Montgomery, in a frightened condition, in the company of one Dick Dusenberry, a passenger on the same train, who, with the knowledge and consent of the defendant's servants, took her into his custody, decoyed her to a saloon, where he held her prisoner for five hours, and ravished her, by reason of which she was greatly injured in body and mind, suffering loss of time and expense, ruined her life and respectability, to her damage in the sum of $ 50,000. The answer was a general denial.
The evidence showed that plaintiff was between sixteen and seventeen years of age, and on November, 1888, she purchased a ticket in Virginia for Mexico, Missouri, intending to stop at Benton City; that she arrived in the St. Louis union depot on the evening of November 4th, and after waiting a short time, she was placed upon a train of defendant company which ran through Benton City and Mexico; that after the train had started the conductor came through the car collecting tickets, and informed her that the train did not stop at Benton City, and she would have to get off at Montgomery and wait there for another train. Plaintiff objected, and insisted upon being let off at Benton City, but the conductor refused. During the journey, a man named Dusenberry took a seat beside plaintiff and engaged in conversation with her. When the train was about stopping at Montgomery, the conductor told plaintiff that was the place for her to get off. Dusenberry offered to see her safe to a hotel, to which the conductor assented. Instead of taking her to a hotel, he took her to a saloon where he brutally abused and ravished her. Upon plaintiff's evidence, the court directed a verdict for defendant, and judgment was entered accordingly, and plaintiff appealed.
In a consideration of the ruling of the court, the evidence will be given, so far as necessary, in detail.
Defendant had the undoubted right in the absence of statutory requirements to determine for itself what trains should stop at particular way stations, and the traveling public was bound to accommodate itself to such regulations as may have been adopted. Trains could not be safely or successfully run under the direction and management of the passengers. If then under the rules of defendant the train in question was not scheduled to stop at Benton City the conductor acted properly and within his duty in refusing to stop there for plaintiff, though she took that train under the direction of another agent of defendant who had authority to direct passengers. In such case, if damage results, it must be attributed to the misdirection. 2 Wood's Railway Law, sec. 355; Logan v. Railroad, 77 Mo. 663; Marshall v. Railroad, 78 Mo. 610.
Safety and convenience of passengers, as well as the business interests of the carrier require and, if defendant undertook to carry plaintiff to Benton City, and under the regulations it had adopted for the...
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