Thе plaintiff sues the defendant for the alleged wrongful act of putting her off its train.
O'n the 14th day of May, 1905, there was an excursion from Keytesville, Missouri, to Chillicothe оn defendant’s railroad and return. The plaintiff and her husband with her sister and nephew purchased tickets for this excursion at Keytesville. The agent selling the tickеts told them they could come back on the midnight train passing Chillicothe at 12:28, the next morning, which was another and a different train from the excursion train. On their return thеy got on the 12:2S A. M. train which was the Omaha fast mail train to
The plaintiff’s evidence tends to show, when she and the others mentioned, reached Brunswick, the conductor followed them to the door, laid his hands on her, and told them they must get off; at the same time using profane language; that the conductor walked along pushing her but used no other force.
The plaintiff and those accompanying her walked from Brunswick on the track of the railroad in mist and rain to Keytesville where they arrived sometime early that morning. The evidence shows that by reason of said walk the plaintiff was made sick and suffered a premature childbirth. The jury returned a verdict of $1,000, on which judgment was rendered from which the defendant appealed.
The defendant contends that the plaintiff failed to make a сase as her ticket did not entitle her to ride on the train in controversy. It is held that, “A complaint by a ticket holder for a wrongful ejectment, must allege thаt under the rules of the carrier the train on which he took passage was required to stop' at the station named in his ticket.” And, further, “A ticket holder who by the nеgligent misdirection of the carrier’s servant enters a train not stopping at his destination has no right to continue passage on such train after being informеd by the conductor of the mistake and afforded a reasonable opportunity to leave; and may be ejected from such train without malicе and unnecessary force, and’ can recover damages for the misdirection if properly alleged.” [Turner v. McCook,
But it was said in Hicks v. Railway,
The petition allеges that plaintiff was directed to take the 12:28 train as stated and that there is no averment in the ansAver that said train under the regulations Aims not permitted to stоp at the station of Keytesville. In the case last cited such regulation was not set up as a defense and the evidence offered to prоve that the 'defendant’s train did not stop at the station, the destination of plaintiff, was rejected by the court because it was not made an issue by defеndant’s answer. However, in this case evidence, that under the rules and regulations of the defendant company the train did not stop' at KeytesAdlle was аdmitted without objection upon the part of plaintiff. If this evidence had been admissible under defendant’s answer the plaintiff under the authorities before cited would not have been entitled to recover. And it seems that the court in giving instructions to the jury did not take into consideration such evidence. In the later case, Sira v. Railway,
As the plaintiff is not entitled to recover under her petition in its present form except fоr any damages she may have suffered by reason of the alleged and wrongful manner in which she was ejected from defendant’s train by the conductor, and as she may elect to amend, so as to base her right of recovery on the alleged wrongful conduct of the agent in directing her to take the wrong train, it becomes necessary to notice other evidence and questions of law raised on the appeal.
It is one of defendant’s contеntions that the plaintiff under the circumstances was not entitled to damages, which was the result of her walk at night in the mist and rain; and that she should have stayed in Brunswick at a hotel or in the depot until the next day, and then obtained a conveyance to Keytesville instead of walking to that place. It is the law that “It is the duty of a party to protect himself from the injurious consequences of a wrongful act of another, if he can do so by ordinary effort and at a mоderate and reasonable expense. . . . [Field on Damages, 19.] And so is the law similarty expressed in 3 Parsons on Contracts, 178. The rule was approved by this court in Dietrich v. Railway,
It was shown that the conductor of the train in question was dead, and it is insisted for that reason plaintiff was incompetent to testify. It is held: “A party to a suit cannot testify as to any arrangement or contract he has made with a deceased agent or officer of a corporation, that is the opposite party.” [Bank v. Thayer,
For the reason given the cause is reversed and remanded.