Taylor v. Wabash Railroad Co.

• Decision Date: 06 April 1908
• Citation: 109 S.W. 1059,130 Mo.App. 582
• Parties: EDWARD WRIGHT TAYLOR, Appellant, v. WABASH RAILROAD COMPANY and THE PULLMAN COMPANY, Respondents
• Court: Kansas Court of Appeals

109 S.W. 1059

130 Mo.App. 582

EDWARD WRIGHT TAYLOR, Appellant, v. WABASH RAILROAD COMPANY and THE PULLMAN COMPANY, Respondents

Court of Appeals of Missouri, Kansas City

April 6, 1908

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

REVERSED AND REMANDED (with directions).

Joseph S. Rust for appellant.

(1) An appeal from an order of the circuit court granting a new trial brings only the ruling of the trial court on the motion for a new trial to the appellate court for review. Haven v. Railroad, 155 Mo. 224; Connally v. Pehle, 105 Mo.App. 418; Bennett v. Mining Co., 110 Mo.App 320. Where there is any substantial evidence offered by plaintiff, it is error for the trial court to sustain a demurrer to the evidence or to nonsuit the plaintiff. It is the province of the jury to pass upon the evidence. Butts v. Bank, 99 Mo.App. 172; Knapp v. Hanley, 108 Mo.App. 360; Ladd v. Williamson, 104 Mo.App. 397; Gannon v. Gas Co., 145 Mo. 516. (5) On appeal this court will not reverse the verdict of the jury upon the weight of the evidence. Colyer v. Railroad, 93 Mo.App. 153; Temple v. Railroad, 83 Mo.App. 69; Woodard v. Cooney, 111 Mo.App. 162.

J. L Minnis and Sebree, Conrad & Wendorff for respondent, Wabash Railroad Co.

(1) The court did right in granting a new trial. The plaintiff was in the wrong berth and defendant, Wabash Railroad Company's instructions numbered 3 and 4, which were refused by the court correctly stated the law and should have been given. (2) Plaintiff was in the wrong berth and it was his duty to vacate the same upon the conductor's request, and when he refused to do so it was the trainmen's duty to eject him using no more force than was necessary. Boling v Railroad, 189 Mo. 216; Car Co. v. Dupre, 54 F. 646; Randell v. Railroad, 102 Mo.App. 342; McQuerry v. Railroad, 117 Mo.App. 262; Kellett v. Railroad, 22 Mo.App. 366. (3) Defendants had the right to require plaintiff to occupy the berth which he purchased and none of the trainmen had the right to put him into a berth purchased by another passenger, and if by mistake he got into the wrong berth, it was the duty of the trainmen to cause him to yield it up to the person who purchased it. Boling v. Railroad, 189 Mo. 234; Mosher v. Railroad, 127 U.S. 390; Boyland v. Railroad, 132 U.S. 146; Kellett v. Railroad, 22 Mo.App. 366; Claybrook v. Railroad, 19 Mo.App. 437. (4) Plaintiff's instruction numbered 1 was erroneous. The cause of action alleged in plaintiff's petition is that plaintiff was wrongfully assaulted and ejected from a berth in a Pullman car attached to a Wabash train, but there was no evidence to support either allegation. Osteryoung v. Transit Co., 108 Mo.App. 706. (5) The court erred in giving plaintiff's instruction numbered 2 for it allowed the recovery of not only actual damages but also punitive damages, when there was no evidence authorizing the recovery of punitive damages. Boling v. Railroad, 189 Mo. 219; Logan v. Railroad, 77 Mo. 669; Claybrook v. Railroad, 19 Mo.App. 436. (6) There was no personal or bodily injury in this case, yet the plaintiff's instructions authorize not only the recovery of compensatory damages for mental anguish, but also punitive damages. In both these respects plaintiff's instructions were erroneous and directly opposed to the law as declared by this court and the St. Louis Court of Appeals. Grayson v. Transit Co., 100 Mo.App. 72; Boling v. Railroad, 189 Mo. 234; Logan v. Railroad, 77 Mo. 669; Claybrook v. Railroad, 19 Mo. 436; Strange v. Railroad, 61 Mo. 592; Connell v. Telegraph Co., 116 Mo. 34; Snyder v. Railroad, 85 Mo.App. 497; Deming v. Railroad, 80 Mo.App. 157; Trigg v. Railroad, 74 Mo. 153.

Lathrop, Morrow, Fox & Moore for respondent, The Pullman Company.

(1) The rule is that though the trial court errs in granting a new trial for the reason stated by such court, yet, if one or more other causes be set out which justify a new trial, the order granting it will be upheld on appeal. Haven v. Railroad, 155 Mo. 216; Connally v. Pehle, 105 Mo.App. 407; Bennett v. Mining Co., 110 Mo.App. 317, 320; Hewitt v. Steele, 118 Mo. 463; Emmons v. Quade, 176 Mo. 22; Udden v. O'Reilley, 180 Mo. 650; Morrison Mfg. Co. v. Roach, 104 Mo.App. 632. (2) We are unable to discover the application of the authorities cited by appellant under points numbered II, III, and IV in his brief to the issues presented to this court for review. Certainly this court cannot, upon the record in this case, feel justified in saying that the verdict of the jury is the only verdict that could have been rendered upon the evidence at the trial. (3) Respondent, The Pullman Company, earnestly insists that a new trial should have been granted for the reasons, among others, set out in its motion for a new trial. (4) Alleged abusive words cannot be treated as part of an assault. Stuppy v. Hof, 82 Mo.App. 272; Ickenroth v. Transit Co., 102 Mo.App. 597; Smith v. Railroad, 122 Mo.App. 85.

OPINION

ELLISON, J.

--The defendant Pullman Car Company was the owner and operated the sleeping car which appears in this controversy; and the defendant the Wabash Railway, is a carrier operating trains for the transportation of passengers, to one of which trains The Pullman sleeping car was attached. Plaintiff brought this action for damages on account of being ejected from the sleeping car by the joint act of the servants of both companies. A verdict was rendered for $ 252 actual and $ 500 punitive damages. The trial court afterwards granted a new trial on the ground that the evidence failed to make a case against the sleeping car company and that it committed error in refusing instructions three and four offered by the railroad company. Plaintiff thereupon appealed from that order.

The evidence in plaintiff's behalf tended to show that he resided in Kansas City and in the month of July, 1904, he visited the "World's Fair" at St. Louis. That on the evening or night of the 4th of that month he concluded to return home, and that he learned there were two Wabash trains due to leave for Kansas City, one at 10:15 p. m. and the other at 11:45 p. m., and being already provided with a return railroad ticket, he purchased of the Pullman company a sleeping car ticket entitling him to lower berth No 9 in car No. 1 attached to the 11:45 train. At about that time he was standing in hearing with his hand baggage at the Union Station in St. Louis from which the train was to depart, when he heard the cry of "all aboard the Wabash for Kansas City;" that he thereupon proceeded to the train, was admitted through the Wabash gate. There were several sleepers and the servants of defendants whom he first met examined both his tickets and directed him to a car further forward. He proceeded further on to other servants who examined his tickets, when the sleeping car porter informed him "this is your car," took his baggage, invited him to follow when he (the porter) placed the baggage in lower berth No. 9, and he, plaintiff, went into the smoking compartment. While in that place smoking the sleeping car conductor called for his sleeping car ticket and assigned plaintiff to lower berth No. 9 by writing that figure and some other matter not understood by plaintiff on his ticket. The train was not on time in getting out of the station, and plaintiff went to bed before it left. In the course of two hours, or more, the conductor or porter of the sleeping car awakened him and asked for his ticket. Plaintiff answered that it had been taken up. This was denied and he was ordered out of the berth; he refused to get up, whereupon he was informed if he did not he would be thrown out. He was told in an abusive and threatening manner that he had no ticket. This servant then left plaintiff and returned with the conductor and brakeman of the railway company. He was again ordered out. He insisted he had tickets and had given them up. The railway collector of tickets then produced the railroad ticket which had been surrendered to him and on which it was found he had endorsed "Lower berth car 1." But the collector protested that he had written those words on information given by plaintiff and that he had not seen a sleeping car ticket. Angry words were exchanged at this time and threats made of the use of knives and lanterns, and finally the bed clothing was pulled off of plaintiff and he was made to get out. He thereupon went into another sleeping car, bought and occupied a berth in that car for the balance of the trip. After having retired in the latter car and being unable to sleep on account of his humiliation and the excitement he had passed through, he again looked into his pockets for his sleeping car check and found it. He got up and sought out the sleeping car porter on the car from which he had been ejected, and also...