The Atchison v. Lamoreux
| Decision Date | 18 June 1897 |
| Docket Number | 97 |
| Citation | 49 P. 152,5 Kan.App. 813 |
| Court | Kansas Court of Appeals |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. A. J. LAMOREUX |
June 18, 1897.
Error from Stafford District Court. Hon. J. H. Bailey, Judge. Modified.
Case remanded.
A. A Hurd, and Stambaugh & Hurd, for plaintiff in error.
Moseley & Dixon, for defendant in error.
This is an action brought in the District Court of Stafford County, Kansas, by A. J. Lamoreux, as plaintiff, against the Atchison, Topeka & Santa Fe Railroad Company, as defendant, to recover damages alleged to have been sustained by him in being, on the twenty- sixth day of September, 1891 unlawfully ejected from a train operated by said Company. Lamoreux claims that he went to the depot of the Railroad Company at Stafford, a short time prior to the departure of the train which ran from there to St. John, and went to the ticket window in time to purchase a ticket and safely board the train; but that there was no person in the ticket office to sell him a ticket, that no one returned so that he could purchase a ticket before the departure of the train, and that just prior to its departure he got on said train for the purpose of riding to St. John, which was about eight or nine miles distant. When the conductor came to Mr. Lamoreux and asked for his ticket he handed to him twenty-six cents, twenty-five of which the conductor took and put into his pocket. The conductor then looked at his rate book and told Lamoreux that the train fare was thirty-six cents and that he must pay that amount or walk. Lamoreux then offered the conductor two or three cents more, and said to him: "I could not get a ticket, but here is enough to make twenty-eight cents and that is three cents per mile, and that is all the money I have." The conductor stopped the train about one and one-half or two miles from Stafford and about seven miles from St. John, and Lamoreux got off the train without any physical force being used by the conductor. The conductor retained the twenty-five cents given to him by Lamoreux. The night was very dark and stormy. Lamoreux continued his journey on foot, following the railroad to St John. He was evicted from the train shortly after ten o'clock P. M. and arrived home after two o'clock the next morning. Lamoreux lived in St. John and was returning home. He was a cripple, and told the conductor so when he was being evicted.
The first error argued by the plaintiff in error is, that the court erred in refusing to instruct the jury, in effect, that Lamoreux should have returned to Stafford instead of continuing his journey to St. John; that as he was about sixty-two years old and a cripple, and as the night was very dark and stormy and threatened rain, it was his duty to seek the most convenient shelter. Lamoreux lived in St. John and was going home. He had been left on the prairie a mile and a half from Stafford and seven miles from St. John with but three cents in his pocket. His business called him to St. John, his home was there, and he took passage on the train in an endeavor to go to his home. Having been put off the train and being without means to procure a conveyance to take him, he was compelled to walk, which he did. The court did not err in refusing to give these instructions.
The second error argued is, that the court erred in refusing to instruct the jury that, if the removal of the plaintiff from the train was without unnecessary force,...
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