The Atchison v. Brown

• Decision Date: 01 January 1896
• Docket Number: 29
• Court: Kansas Court of Appeals
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. DAVID T. BROWN

42 P. 588

2 Kan.App. 604

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. DAVID T. BROWN

No. 29

Court of Appeals of Kansas, Northern Department, Eastern Division

January 1, 1896

Opinion Filed November 11, 1895.

MEMORANDUM.--Error from Atchison district court; ROBERT M EATON, judge. Action by David T. Brown against The Atchison Topeka & Santa Fe Railroad Company to recover damages for being ejected from a train. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein filed November 11, 1895, states the material facts.

Judgment reversed and cause remanded.

A. A. Hurd, and Mills, Smith & Hobbs, for plaintiff in error.

B. F. Hudson, for defendant in error.

CLARK J. All the Judges concurring.

OPINION

CLARK, J.:

This was an action brought by the defendant in error, David T. Brown, against the plaintiff in error, The Atchison, Topeka & Santa Fe Railroad Company, in the district court of Atchison county to recover damages alleged to have been sustained by the plaintiff by reason of the wrongful acts of the servants, agents and employees of the defendant in ejecting him from a passenger-train of the defendant in said Atchison county on the 25th day of March, 1889. The plaintiff alleges that prior to receiving the injuries complained of he was a physician and earned the sum of $ 3,000 per year by the practice of his profession, and that as a result of said injuries he became permanently disabled and rendered incapable of attending to any business whatever; that he incurred and expended the sum of $ 100 for medical treatment and care; that he was confined to his bed and to his house by reason of said injuries for a period of about two months, during which time he was unable to attend to any business whatever; that his time during said period was well and reasonably worth the sum of $ 500, and he prays damages in the sum of $ 20,000. The jury returned a general verdict in favor of the plaintiff for $ 250, the items of which, as shown by the answers to special questions to the jury, were as follows: For pain of body and mental anguish, $ 140; for medicines, $ 10; for the value of the services of the physician who attended him while he was endeavoring to be cured of said injuries, $ 100.

Answers were made by the jury to 128 special questions submitted by the parties to the action. The record contains but little of the evidence, and only that part thereof relating to the value of the services of the physicians who attended the plaintiff, and the amount expended by him in the way of medicines, nursing, etc., during the time he was confined to his house, or while he was suffering from the injuries received by him. The evidence supports the findings of the jury as to the value of the services of the physicians and the necessary expenses incurred by the plaintiff in addition to the medical attendance received. The defendant moved for judgment on the particular questions of fact found by the jury, notwithstanding the general verdict, which motion was overruled by the court, and is the particular error complained of.

From the special findings of fact by the jury, it appears that on or about the 25th day of March, 1889, at about 9:45 P. M plaintiff below, Dr. David T. Brown, entered a car of the plaintiff in error at Atchison to be transported thence to Nortonville as a passenger, having in his possession at the time a ticket which he in good faith believed entitled him to such transportation, and, when called upon by the conductor, he offered said ticket for his fare, but as a matter of fact said ticket was not one entitling him to such transportation, and he was so informed by the conductor. Neither did the defendant in error produce and present a ticket from Atchison to any station upon the plaintiff in error's railroad line, but the ticket so offered showed on its face that the holder was entitled to transportation over another and independent line of railroad from Atchison to Effingham. The conductor then demanded of the defendant in error the regular fare from Atchison to Nortonville, which was 50 cents, but he refused to make such payment, although he was financially able, and had sufficient funds with him at the time to have done so. He was then notified by the conductor that he must either pay his fate or get off the train; that, unless he made such payment, he would be compelled to stop the train and put him off. The defendant in error then informed the conductor that if he got him off he would have to put him off. The train was then brought to a full stop, after which the conductor again requested him to pay his fare or get off the train without requiring force to be used, and informed him that he did not want to be compelled to lay hands upon him. The defendant in error still refusing to leave the train, the conductor then lifted him out of his seat and pushed him along the aisle to the door of the car, and while so doing nothing...