52 Mo. App. 499 | Mo. Ct. App. | 1893
This is an action for damages because of plaintiff’s alleged wrongful ejection from one of defendant’s passenger trains. At the close of plaintiff’s evidence the trial court sustained a demurrer thereto, whereupon a nonsuit was taken with leave, etc., and, and after an unsuccessful motion to set the same aside, plaintiff appealed to this court.
As is our duty then, we concede every fact in plaintiff’s behalf, which his evidence tended reasonably to establish; and we find that such testimony tended to prove the following state of facts: At two o’clock on the morning of the eighteenth of August, 1890, plaintiff went aboard the defendant’s regular passenger train at Lamar, Missouri, to ride on defendant’s railroad from Lamar, Missouri, to Grandin, Missouri, and return. Just before boarding the train, plaintiff purchased of defendant’s station agent at Lamar a round-trip ticket, from Lamar to Grandin and return, good
The distance from Lamar to Grandin is two hundred and thirty-six miles. The defendant’s passenger conductors were changed at Springfield and again at 'Willow Springs; so that plaintiff would ride with one conductor from Lamar to Springfield, with another from Springfield to Willow Springs and with a third (the one who ejected him) from Willow Springs to Grandin, his destination. There was but one passenger train running between Willow Springs and Grandin, a distance of eighty-one miles, and but one conductor, who made the round trip from Willow Springs to Grandin every day, leaving Willow Springs each morning, and returning there each evening.
After leaving Lamar at two o’clock on the morning of the eighteenth of August, plaintiff presented his ticket to the first conductor, who honored it to Springfield. After leaving Springfield he presented it to the second conductor, who honored it to Willow Springs. After leaving Willow Springs, about 8:30 on the morning of the eighteenth, the same day of its date and purchase, he presented it to the third conductor, and at the same time informed this conductor that he intended to stop off at Winona, a station thirty-eight miles east of Willow Springs. (He was going east.) The conductor made no reply, but took the ticket, honored it, tore off the going coupon (he being the last conductor through whose hands it would pass), and handed the remainder of the ticket back to plaintiff. The conductor did not give the passenger any slip or check, nor anything in lieu of the detached coupon; but simply handed the main ticket back to the passenger. The passenger was carrying the ticket in an envelope, furnished him by the station agent who sold it to him, and when the conductor handed it back to him he put it in his pocket with
I. In our opinion the lower court committed error in turning the plaintiff out of court after he had made the showing above indicated. The ticket which the plaintiff held, and which he presented to Abernathy, the conductor, gave evidence of the right to ride, and of Cherry’s right, too, to stop over at any station intermediate between Lamar and Grandin. The main ticket read, “Good for one first-class passage to Grandin, Missouri, and return,” and further on, in the going and returning coupons, it was stated to be “good to stop off at all points.” By the terms, then, of this memorandum of the contract between the defendant railroad company and the plaintiff he had purchased the right to do just as he attempted — to ride to Winona, get off, and at a future time, within the
This is not a case where a party attempts to ride without a ticket (as seems to be counsel’s contention). Admitting an imperative necessity on the passenger to produce a ticket showing his right to be carried over the road (or the payment of a cash fare), conceding the duty of the conductor to be such that he must demand a ticket (or the cash), and that he is not called on to take the word of the passenger, or to “stop
We have read and considered all the cases cited by defendant’s counsel, and find in them no precedent for the position here contended for by him. The following, among others, however, sustain plaintiff’s claim: Kellett v. Railroad, 22 Mo. App. 356; Railroad v. Rice, 64 Md. 63-66; Head v. Railroad, 79 Ga. 358, 364; Railroad v. Hennigh, 39 Ind. 509; Palmer v. Railroad, 3 S. C. 580; Townsend v. Railroad, 4 Hun (N. Y.) 217.
The suggestion is made in defendant’s brief that,, even to admit plaintiff’s right to ride on defendant’s-road at the time, yet he ought to have paid the additional fare demanded and sued for the return thereof' as money paid under duress, unless the same was refunded. Notwithstanding the rulings of some of' the courts which look that way, we think no such course was incumbent on the plaintiff, since he would thereby be purchasing a right he had already. “The plaintiff was under no obligation to purchase, even for a trifle, the right which was already his own.” Railroad v. Rogers, 28 Ind. 1; Graham v. Railroad, 29 N. E. Rep. 170. By the purchase of his ticket, entering the car and displaying to the conductor the evidence entitling him to a passage, a duty arose on the-part of the railroad company to carry the plaintiff over the route he sought to travel. By the company’s refusal to perform this duty, and forcibly expelling the plaintiff from the train, a case was made, to-wit, an action for damages for the wrong thus inflicted on' the plaintiff.
Defendant’s counsel make some objection to the formality of the judgment from which this appeal was taken; it is suggested that it is not such a final judgment from which an appeal would lie. The objection is not well taken. A judgment similar in form was-
Judgment reversed, and cause remanded.