125 Mo. App. 334 | Mo. Ct. App. | 1907
The plaintiff was pnt off of one of defendant’s trains by the conductor and brakeman and claim's to have been injured. The verdict was for five-hundred dollars compensatory damages. Punitive damages were not allowed.
The evidence in plaintiff’s behalf showed that while under the influence of iiquor he boarded defendant’s passenger train at Greencastle intending to go to a station called Stahl, the distance being only a few miles. That the conductor called upon him for his fare and that he had neither money nor ticket. That he made a show of trying to find money or ticket in his pockets and not producing either, the conductor telling him he must pay or get off and on his continued failure to respond the conductor signaled the engineer to stop the train. That when the train was stopping the conductor and brakeman were forcing him to the platform and on getting onto the car steps as the train had about come to a stand on an embankment of about fifty feet in height, they violently pushed him from the step. That he struck the upper portion of the embankment and rolled to the bottom, whereby he received painful injuries. There was also evidence which, if believed, tended to prove that he thought he had a return portion of round-trip- ticket from Stahl to Greencastle, but, in fact, did not have it.
The evidence in his behalf further tended to show a tender of his fare by an acquaintance, which the conductor refused with the words, “To hell with your money. You are too late.” But it conclusively appears that no tender was made until after the failure to pay and after the conductor had given the signal to stop the-train. The money for the tender was obtained from his acquaintance who was seated at the opposite end of the car and upon his attention being called to the scene
. There was evidence in defendant’s behalf that plaintiff customarily tried to “beat” his way and had on several occasions severely taxed the patience of conductors by refusing to pay, by pretending to have no money, or to have lost a ticket, by making pretense to search his pockets for money or ticket, etc., and on the trip to Creeneastle that day he had refused to pay until threatened. Several of plaintiff’s important witnesses were asked by defendant on cross-examination, if they too were not in the habit of trying to “beat” the defendant out of the fare between the points named. The trial court sustained plaintiff’s objection to questions of that character.
By instruction number 4, given for the plaintiff, and by instruction number 1, amending that asked by defendant, the trial court denied the defendant’s right to put plaintiff off of the train if “before the conductor put him off” a passenger tendered the fare to the conductor. The law was thus stated to the jury without qualification, and we are of the opinion that it calls for a reversal of the judgment, since it amounts to a direction (the defendant’s evidence considered) that a tender after the beginning of an effort at removal should be accepted, regardless of his intention and conduct in boarding the train. A wise, reasonable and just rule has been laid down in this State by Judge Bond of the St. Louis Court of Appeals and approved by the Supreme Court, that if a person boards a train with the proper evidence of a right to he carriedor with the intention of paying his fare, he becomes a passenger and that if there be, on his part, an honest misunderstanding as to his rights in the payment of his fare, or under his
But, the case last cited (and others to which we shall refer) declares the law to he, that when one wrongfully, without reasonable cause or just excuse, refuses to produce his ticket, or pay his fare, he then forfeits his rights as a passenger and may be expelled from the train; and that after the conductor has made a beginning in the acts of expulsion, a tender is too late to revive, or to establish the right to be considered a passenger. The same rule is stated in Garrison v. Railroad, 97 Md. 347, 353. And in Moore v. Railroad, 38 South C. 1, it is said that one who enters a coach without a ticket, on refusing to pay his fare becomes a trespasser ah initio. In Railroad v. Asmore, 88 Georgia 529, in speaking of the case of Railroad v. Nix, 68 Georgia 572, which it overrules, the court said: “Our conclusion is, that it is not sustainable either on principle or by sound authority, and we feel constrained to overrule it in so far as it lays down in universal and unqualified terms the proposition, or its equivalent, that a passenger by making a tender at any time before his ejection may acquire the right to remain on board and be carried. Whenever a passenger refuses to accede to a just and lawful demand made upon him by the conductor for the payment of his fare, after being allowed reasonable time and opportunity to comply, he renounces his right to the position and the privileges of a passenger, and subjects himself to expulsion from the train. If he changes his mind and tenders the fare before anything is done towards bringing the train to a stop in order to eject, him, his-refusal will be retracted in time and his right to remain and be carried will stand unaffected. If he higgles and hesitates until he becomes a proper subject for ejection, and until steps have been taken to that end, he is too late. Any rule which would allow one passenger to play fast and loose
It Avill be noticed that the case of Railroad v. Garrett, supra, like that of Holt v. Railroad, supra, in our Supreme Court, was where the passenger was actuated by the utmost good faith. But in a subsequent case in the Supreme Court of Tennessee, involving a different character of a plaintiff, that court stated the rule as it is very generally accepted in this country and drew the distinction between complainants wilfully at fault, and those with honest intentions. It was said: “If the plaintiff failed to pay his fare at the time, when, according to the regulations of the company, it should have been paid, and upon reasonable demand made therefor, he himself broke the contract, and could not insist
The case of Holt v. Railroad, was, as already stated, certified from the St. Louis Court of Appeals. It was certified because one of the judges of that court deemed it to be in conflict with Perkins v. Railroad, 55 Mo. 201. But the Supreme Court coucluded there was no conflict when the respective decisions were applied to the facts of each case. The Holt case determined in behalf of a plaintiff, with fair and honest motive, and whose conduct was in no respect in wilful disregard of the carrier’s rules, that a tender after the beginning of the effort to put him off was sufficient to put the carrier in the wrong for persisting in his expulsion. The Perkins case, considering the instruction which was given as appears on page 210 of the report and the remarks of the
The defendant offered its instruction number 8, to the effect that if it was plaintiff’s intention when he got upon the train not to pay full fare for his transportation, then he did ‘not become a passenger. That part of the instruction was a correct statement of the law, and if it had not been made faulty by subsequent matter, it would doubtless have been given. [Lillis v. Railroad, 64 Mo. 465; Higley v. Gilmer, 3 Mont. 90; Gilbert v. Nagle, 118 Mass. 278.] But, as offered, the instruction Avent further and declared the right of the conductor to put him off, regardless of the place or manner of his removal, or the injuries he received. Though plaintiff may not have been a passenger entitled to carriage, and although the conductor may have had a right to remove him, yet he should not have done so in an unnecessary and harmful manner, and must not have inflicted injuries upon him beyond what were reasonably to be expected to result from a proper effort to expel him. [Randell v. Railroad, 102 Mo. App. 354; Tanger v. Railroad, 85 Mo. App. 28.]
It is suggested by defendant that the petition is
It is further suggested that the petition alleges that plaintiff became a passenger on the train and that after his fare had been duly tendered he was wrongfully ejected; while the evidence showed no offer of fare by him, but a tender by a third party without his solicitation. We may concede that a carrier is not obliged to enter into contractual relations with third parties in transacting its business with a passenger, and therefore is not obliged to accept a tender of fare for a passenger against his consent, or made without his knowledge ; yet if the tender is made in behalf of the passenger in his presence or hearing and is not repudiated by him, it is reasonable to assume that his silence is an acceptance or acquiescence in the effort thus made in his behalf. In this case the tender, if made at proper time, was in the hearing and presence of plaintiff and we must assume with his consent.
Prom the foregoing it will be readily seen that- the' plaintiff has had his case presented to the jury in such way as to cut out many considerations appearing in evidence in defendant’s behalf, which could well prevent his recovery. The record discloses that plaintiff being without money, had no right to be considered as a passenger, on the contrary he was a trespasser, unless he had theretofore purchased a round-trip ticket, the return portion of which he had not used, and which he, in good faith, thought he had in his pocket when he entered the train. And that unless that is believed, he had no right to the benefit of a tender made after the conductor had begun to stop the train. The jurv should be made to understand the distinction between the rights of an honest man acting in good faith and those of a vexatious cheat who not only disarranges and disturbs
The judgment is reversed and cause remanded.