11 Mo. App. 463 | Mo. Ct. App. | 1882
delivered the opinion of the court.
The plaintiff recovered a judgment against the defendant for $250 damages for ejecting him from one of its passenger trains. It appears that on the twenty-sixth day of February, 1881, he purchased of a ticket broker at the Union Depot, in St. Louis, an emigrant ticket from St. Louis to Little Rock, which had been originally issued bv the Ohio and Mississippi Railroad Company on account of the defendant. This ticket contained the following clause: “The holder hereof, in consideration of the reduced rates at which this ticket is sold, agrees with the respective companies over whose roads such holder is to be carried, to use the same on or before the expiration of date as cancelled by punch on the margin of this contract, and the holder hereof failing to comply with this agreement, either of said companies may refuse to accept this ticket, or any coupons thereof, and demand the full, regular fare, which the holder agrees to pay. If more than one date is cancelled it will not be received for passage bj^ conductors.” On the margin of this ticket the printed words and figures, “Feb.” ■“ 26,” and “ 1881,” were punched out with a punch which
With this ticket in his possession the plaintiff went aboard the regular passenger train of the defendant at the Union Depot in St. Louis, at nine o’clock, p. m., on the day named, February 26, 1881. The testimony is conflicting as to whether his ticket was inspected by any servant of the defendant before the train started. The conductor and a porter of the train testify that it was ; and that the conductor told him that it would only be good until midnight, and that he had better go back to the office where he bought it and get it changed. He and a person who went with him to see him off', testify that his ticket was not called for before the train started. Then (with some conflict), the substantial testimony is that after the train had got out of St. Louis, the conductor inspected his ticket and told him that it would not be good after midnight, and that he could not ride beyond Bismark without paying additional fare ; that, after some negotiation, by which the plaintiff endeavored to induce the conductor to carry him through to Little Kock, he was put off at a station between midnight and two o’clock in the morning. The conductor and the porter swear that this station was Iron Mountain, a town of five hundred or six hundred inhabitants, whore, the conductor swears, he could have got accommodation for the night. The plaintiff, on the other hand, swears that it was at a flag station about a mile and a half north of Arcadia, where there were no houses in sight, no lights visible ; and that he was told by a man at 1 lie station that if he should go on to Arcadia he would find a fire -and a telegraph operator at the statiou-house, and that they would let him stay there. So, as ho testifies, he went on, following the railroad track. It was very dark, and rained heavily. He could see nothing except by the flashes of lightning. While thus groping his way along, he fell through a cattle-guard and hurt his knee. He arrived
The testimony as to his falling through the cattle-guard was admitted against the defendant’s objection,-and an exception was saved.
The court, at the request of the plaintiff, gave the following instructions to the j ury : —
“1. Upon the contract upon the ticket read in evidence, the court declares the law to be, that if the holder of said ticket, on the twenty-sixth day of February, 1881, went upon defendant’s passenger train at St. Louis, for the purpose of being carried to Little Rock, Arkansas, to which place the said train was about to proceed, and on said date, and before its expiration, offered said ticket to defendant’s conductor when called upon by him for his fare; then it was the duty of said conductor to receive said ticket and to carry him on said train to Little Rock. And if the jury believe from the evidence that the plaintiff had purchased said ticket and was the holder thereof, and if, upon said twenty-sixth day of February, after getting upon defendant’s passenger train on its way to Little Rock from St.. Louis, offered said ticket to defendant’s conductor on said date, and before its expiration, and if the jury find that said conductor refused to receive said ticket and refused to permit the plaintiff to be carried by said train to Little Rock, Arkansas, his destination aforesaid, but required and com-*467 pellet! him to leave said train before reaching said place, the defendant is liable in this action, and your verdict should be for the plaintiff.
“ 2. If you find for the plaintiff, you should award him such a sum in damages, as will compensate him for the injury done him in consequence of the defendant’s wrongful act; and the court instructs the jury that, in arriving at such sum, the jury may consider plaintiff’s loss of time, if any has been proven; his inability to attend to business and to work, if the same is established by the proof; all pecuniary expenses established by the evidence, if such you find has been done; all bodily pain and mental anguish which the evidence shows to have been the immediate result of such wrongful act. And the court further instructs you, if you find from the evidence that plaintiff has been permanently injured in any degree, by the wrongful act of the defendant complained of in this action, you are to consider such permanent injury in estimating the damages.
“3. The court instructs the jury that if they believe from the evidence, the plaintiff entitled to damages compensating him for the injuries received, and if they further find from the testimony, that the defendant’s conductor, in compelling plaintiff to leave his train, acted in a wanton, reckless, or oppressive manner, then you are at liberty, in addition to such compensatory damages, to award him such further sum asyou think right under all the circumstances, as exemplary damages, and in such case, add the same to the amount found for compensation, and the total should be the amount of your verdict, such sutn not to exceed the amount claimed in plaintiff’s petition.”
The court refused the following instructions offered by the defendant: —
“ 1. Defendant asks the court to declare the law as follows : That under and by virtue of the contract forming a part of the ticket read in evidence, the plaintiff, as the holder thereof, was only entitled to ride as a passenger in*468 the ears upon defendant’s line, from the city of St. Louis southwardly up to twelve o’clock, p. m., of the twenty-sixth day of February, 1881, notwithstanding said plaintiff may have shown his ticket to the conductor of defendant’s train previous to said time on said night.
“ 2. The court instructs the jury that in this case, plaintiff is only entitled to recover compensation for the injuries inflicted upon him by the alleged wrongful act of defendant, and that the jury, in determining such compensation, will exclude from their consideration speculative or remote damages, or such damages as did not necessarily or naturally flow from the act complained of.
“ 3. The court instructs the jury that there is no evidence before the jury of any malice upon the part of the conductor, in causing plaintiff to leave defendant’s train at the time that he left, and that plaintiff is not entitled to recover herein, exemplary or punitive damages for any injury that he may have received subsequent to his being put off said train.”
The court, at the request of the defendant, gave the following instruction: —
“ The court declares the law to be, that unless the jury find from the evidence that the conductor of defendant’s "train, in putting plaintiff off the train on the night of February 26, 1881, was guilty of malice, or a wicked disregard of plaintiff’s rights, or of a disposition to oppress the said plaintiff, then the plaintiff is only entitled to recover herein compensation for the injuries actually received by him, and that in determining the amount of damages, they will disregard the remote or speculative damages, or such as did not necessarily or naturally flow from the act of defendant complained of.”
These rulings are sufficient to present the questions which we have to consider.
We are of opinion that such a ticket is used when the holder of it enters upon the transit for which it calls, at any time before midnight of the last day to which it is limited. Certainly the terms employed in the ticket are not so plain as to leave no room for construction ; and in a case of this kind, where there is room for consti’uction, there is no principle upon which we can be asked to adopt a strict construction as against the travelling public. The railroad company have sold this ticket, and have got their money for it. It is not suggested that any hardship or injustice would accrue to them from the adoption of the construction which the plaintiff asks us to put upon its language. The contrary construction, in this instance, at least, operates as a forfeiture ; and it is certainly a good rule, in construing a doubtful clause in a contract relating to the time within which a given thing is to be done, so to construe the contract as to save a right and prevent a forfeiture. Gash v. Penix,post, p. —. Besides, these tickets, as is well known, are not personal contracts with the particular person who first buys them. On the contrary, they are tokens for the carriage of any person over the transit named, who may
But there is another consideration. The defendant, by its conduct, had placed a construction upon the language in question such as the plaintiff claims for it. If we rightly understand the testimony of the ticket broker who sold this ticket to the plaintiff, he swears of his own knowledge that the defendant company was in the habit of honoring tickets of this kind, that is, tickets which are so punched that the transit cannot be completed before the time when they expire ; and he is not contradicted on this point.
■We have been favored with a manuscript opinion of the court of common pleas of New York City, in which the precise point here under discussion, upon a ticket precisely like this one, was decided, and decided in favor of the position taken by the defendant in this controversy.
Although this is a very respectable court, and although three judges concurred in this opinion, we cannot assent to it, for the reasons stated. Notwithstanding the reasoning of the court in that case, and the weight which is to be attached to the opinion of those judges, we cannot bring oür minds to the conclusion that where the language of a ticket is susceptible of two constructions, that construction should be adopted which will allow the railway company to keep the passage-money which the ticket represents, and at the same time eject the passenger from its train.
Taking the plaintiff’s testimony as the basis of this inquiry, as we are entitled to do after a verdict in his favor, we must remember that it was a very dark and rainy night in the winter ; that the station was a flag station merely ; that the plaintiff was totally unacquainted with the country; that the only man he was able to speak to refused to take him to his house, but told him that he could get shelter at Arcadia, a mile and a half distant; that he took the most direct and safe way of getting there — the railway track ; and, while so endeavoring to get there, fell through the cattle-guard and was injured. A traveller put off at such a place, and at such a time, would be most likely to do what the plaintiff did do ; and it is not, we think, straining any legal principle to hold that the hurt which he received was the proximate consequence of the wrong of putting him off the train uuder the circumstances. There is some analogy n this case to the case of Patton v. Railroad Company (32
This case is clearly distinguishable from cases where the passenger, wrongfully set down by a carrier at a place other than his destination, chooses to walk to his destination, instead of hiring another conveyance, which he might easily do, and, in consequence of so walking, takes cold and gets sick. In such cases the passenger cannot recover enhanced damages for the sickness, because a person cannot make another pay damages for an injury which he has voluntarily brought upon himself. Indianapolis R. Co. v. Birney, 71 Ill. 391; Francis v. Transfer Co., 5 Mo. App. 7. We regret to find a modern decision of the English Court of Queen’s Bench somewhat opposed to us in this view. Hobbs v. Railroad Co., L. R. 10 Q. B. 111; s. c. 44 L. J. (Q. B.) 49. In that case, a husband and wife, passengers on a raihvay train, were taken to the wrong station and there put off, through the negligence of the carrier’s servants. They could obtain neither accommodation nor conveyance, and consequently were obliged to walk several miles in the middle of a wet night, in consequence of which the wife caught cold and was sick for some time. It was held that they could recover for the personal inconvenience which they both had suffered, but nothing for the wife’s illness. An examination of the opinions of the judges will show that the ground on which they proceeded was that the
The question, it must be admitted, is not entirely clear. The judge could not say, as matter of law, upon the facts of this case, that the particular damage was or was not too
I recall a case in theUnited States Circuit Court in this city, the intervening petition of McAuley in the case of Littlefield v. Atlantic and Pacific Railroad Company, where a very humane and experienced judge had this question before him as a chancellor. An old man had been put off a passenger train in the daytime, by an honest mistake of the conductor, in supposing that his ticket had expired, when, in fact, it had not. The conductor used no unnecessary violence and no abusive language. It was a bright day, and the old man walked to his home, about three miles distant, without suffering any injury or any very great inconvenience. Treat, J., upon a careful consideration, held it a case for exemplary damages ; and, the road being in the hands of a receiver of his court, awarded the petitioner the sum of $500, double the amount awarded in this case, and required the receiver to pay it.
There was, for these reasons, no error in refusing the defendant’s second and third instructions on the same subject.
The judgment of the circuit court is affirmed.
Note. — The case above referred to, Auerbach v. New York, etc., R. Co., was reversed by the New York Court of Appeals, since the rendering of this decision, 14 Cent. L. J., 461; Ibid. 481.