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

• Decision Date: 02 December 1907
• Citation: 106 S.W. 108,127 Mo. App. 53
• Parties: SMITH v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

106 S.W. 108

127 Mo. A. 53

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

Kansas City Court of Appeals. Missouri.

December 2, 1907.

1. CARRIERS — PERFORMANCE OF CONTRACT OF TRANSPORTATION — ACTIONS — DAMAGES.

In an action against a railroad for failure to afford plaintiff a reasonable opportunity to leave the train, and thus compelling her to ride to the next station, the measure of damages is such amount as will reasonably compensate her for actual inconvenience, loss of time, and labor of returning from the next station to her original destination.

2. SAME — EVIDENCE.

In an action against a railroad for failure to afford plaintiff a reasonable opportunity to leave the train, evidence held insufficient to sustain a charge of incivility on the part of the conductor.

3. SAME — JUDGMENT.

In an action against a railroad for failure to afford plaintiff a reasonable opportunity to leave the train at the station, the evidence showed that she left the train from the rear end, being some distance from the depot, and then re-entered in order to ride to the depot, and intending to require the conductor to let her off on the station platform, in consequence of which act she was carried to a station three miles distant, and compelled either to wait four hours for a train back, to walk back, or take a carriage. It was about midnight, the station was lighted, the weather was pleasant, and the roads good. Held, that a judgment for $100 was excessive.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Mrs. Rice Smith against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff remit part of recovery.

L. F. Parker and Woodruff & Mann, for appellant. H. L. Shannon, for respondent.

JOHNSON, J.

The cause of action alleged in the petition is founded on the negligent failure of defendant, a common carrier, to afford plaintiff, a passenger on one of its trains, a reasonable opportunity to leave the train at her destination, in consequence of which she was carried beyond her station and compelled to walk home. The wrongful act is claimed to have been aggravated by insulting conduct on the part of the conductor, and the prayer of the petition is for the recovery of exemplary as well as compensatory damages; but the learned trial judge ruled, in the instructions, that none of the facts disclosed presented a case for the assessment of punitive damages.

Defendant, in effect, conceded it had been guilty of a technical breach of its contract with plaintiff in carrying her beyond her station, and first took the position that, under the facts most favorable to her contention, she was entitled to nominal damages only. An instruction to this effect was asked, but was refused, whereupon the defendant asked, and the court gave, the following instruction on the measure of damages: "If the jury find the issues for the plaintiff, in assessing her damages they will allow her only such sum as will reasonably compensate her for the actual inconvenience, loss of time, and labor of returning from Webb City to Orinogo, not exceeding the sum of $500, and you should not allow her any sum for anxiety or for mental suffering or exposure." Thus instructed, the jury returned a verdict for plaintiff in the sum of $100. Defendant, after ineffectually moving for a new trial, brought the case here by appeal, and presents but one question for our determination, viz., that the verdict is so clearly excessive we should pronounce it to be the result of passion or prejudice on the part of the jury. Plaintiff answers this contention by saying, in effect, that, since the facts and circumstances in evidence justify the conclusion that the wrongful act of defendant in failing to perform its contract with plaintiff was accompanied by insult, the jury rightly included smart money in its verdict, though in so doing it disobeyed the court's instructions.

The pertinent facts which afford grounds for these diverse positions are as follows: On August 20, 1905, plaintiff, who lived in Orinogo, became a passenger on a Sunday excursion train run by defendant, which consisted of an engine and seven coaches. Her ticket entitled her to ride on this train from Orinogo to Eureka Springs, Ark., and return. On the return trip, the train arrived at Orinogo at about 11:45 p. m. and was stopped at the station at a point where the forward coach stood immediately south of the south end of the platform (the track passes through the town from north to south), the next three coaches at the platform, and the three remaining coaches to the north of it. Plaintiff, in company with three other women and two children, rode in the rear coach. The train remained stationary a sufficient time for, perhaps, 75 passengers to leave it. Plaintiff and her companions knew they had reached their destination, and, observing the cars were too crowded for them to go forward to a coach adjacent to the platform, proceeded to the rear end of the last coach for the purpose of alighting. The station and platform were on the west side of the track, and the only reason given by plaintiff, who appears to have directed the movements of her party, for not alighting on that side of the train, was that the ground was lower there than on the other side, and they would be inconvenienced in making the long step required to reach it. It is not shown that the step could not have been made in safety, or without much inconvenience, nor that they would not have had an open and safe pathway over which to travel in reaching the platform. They chose, however, to alight on the east side, where it was quite dark, and the gravel was wet and soft and sloped downward in a way to make their footing precarious. Becoming confused and fearful that they were not in a place of safety, plaintiff proposed to her companions to reboard the car and to require the conductor to let them off at the platform. They acted on this suggestion, and after the train started forward, and as they were passing the station, they encountered the conductor. The conversation which ensued thus is stated by plaintiff: "The conductor, just as I put my hand on the knob of the opposite coach to see if I could get the door open and see some one, he came in, and I says: `This is where we stop, please let us off.' And he spoke very rough, and says: `Why didn't you get off when the train stopped?' And he says: `You will just have to go on to Webb City. I will not stop the train.'" When they arrived at Webb City, plaintiff, so she states, "said to the conductor: `How are we to get back from here?' And he says: `Go to the depot and wait for the next train back.' And I says: `Will we have to pay our fare back?' And he says: `No, just tell the conductor you were carried past your station.'" Webb City is three miles from Orinogo. A station is maintained there, and on...