129 Mo. App. 7 | Mo. Ct. App. | 1908
(after stating the facts) —
It is said the first instruction given for plaintiff conflicts with the second one for defendant, which told the jury, if they found plaintiff offered to pay his fare, but before making the offer he had refused to pay, and the conductor had signalled to stop the train for the purpose of removing plaintiff, a subsequent offer did not entitle him to be carried on the train and the conductor was under no obligation to permit him to ride. Under the Holt casie an offer to pay, not accompanied by a tender of the money, would be insufficient to put the conductor in the wrong in going on Avith the expulsion. In the first instruction given for plaintiff, his right to continue on the train after he had failed to pay his fare Avhen it was first demanded, Avas made to depend on a subsequent tender. The tAvo instructions are reconcilable by the distinction taken in the Holt case.