78 Mo. 610 | Mo. | 1883
The material portion of the petition in this case is as follows: That defendant, on or about the 11th day of October, 1878, for a reward, undertook and agreed to convey plaintiff safely from Kirksville, in Adair county, to Dalton, in Chariton county, but that wholly neglecting and disregarding its duty in that behalf, maliciously or wantonly and wrongfully refused to put plaintiff off at Dalton, but carried her on to Brunswick, and that by reason of said wrongful act of defendant she was damaged in the sum of $5,000, for which she prays judgment. The defendant in its answer denied each and every allegation contained in the petition.
The plaintiff testified as follows : "I reside at N ewark, Knox county, Missouri. On October 11th, 1873,1 bought from defendant’s agent at Kirksville a ticket from Kirks^ ville to Dalton. I asked the agent if he could sell me a through ticket to Dalton (I knew I would have to make a change at Moberly), and he said he could. He got the ticket and I paid him for it. I asked what time the tram would go out; it was then after eight o’clock, and he said the train left ten minutes after nine. I asked him what time it would get to Moberly, and he told me. I said, how long will I have to wait there, and he said something over two hours. I then paid him for the ticket. I then asked him if I would have any trouble in making the change at Moberly, or in getting off at Dalton, and he said 4 no, madam, none at all; the officers all along this road are gen
Cross-examination: After I left Kirksviile, the next conversation I had with the railroad officials was with the conductor after I left Moberly. The conductor said he could not put me off at Dalton. In the first conversation I had with the conductor he told me to go on to Brunswick. The conductor said he was near forty minutes behind time. He gave me the pass back from Brunswick to Dalton,'but I objected. I said I do not want your pass, but he gave it to me. In the depot at Kirksviile I did not see any notice posted up in regard to the running of trains. I cannot see to read very well after night, and I did not see anything of the kind. In the first conversation the conductor said Dalton was not on his bill to stop, and that is all he said at that time. In the next conversation he again said he could not stop. In the last conversation he said he was behind time, and he turned off" in a rude and abrupt manner after the third conversation. He gave me the pass the first time. He said the train on which I would go back would reach Dalton after nine o’clock, and I said I cannot wait that long. The conductor on the train from Moberly to Dalton took up my ticket. He took it up when he first met me, and that is the time he gave me the pass, -but I told him I did not want the pass, but that I wanted to stop at Dalton. In my last appeal I said, if you will slacken the speed of the cars, I will get off at the back of the car and risk the danger; and he said, I am not going to do it. This was in the third and last conversation, and his manner was rude and abrupt. I knew he was out of patience. I do not know that there was anything abrupt in the first
The conductor of the train which carried the plaintiff beyond her destination, testified that his train was an express train, running from St. Louis to Kansas City, and that there were twelve or fourteen stations at which he did not stop; that said train was known as number three, and was not allowed to stop at Dalton, and on the occasion referred to he had no authority to stop his train at Dalton. Trains number one and two stopped at Dalton regularly. On the morning in question his train was behind time and. arrived at Brunswick fifteen or twenty minutes late.
The following stipulation was then made in open court between the attorneys for plaintiff’ and defendant, to-wit: “It is admitted by counsel for the plaintiff that train number three, on which plaintiff got on board at Moberly, was the. through express from St. Louis to Kansas City, and that by the time table and schedule of running arrangements in force on defendant’s railroad at said date it was not advertised to stop at Dalton, and that Dalton was not a stopping place for said train by said schedule.”
At the instance of the plaintiff the court gave the following instructions:
1. If the jury believe from the evidence before them that plaintiff purchased of defendant’s agent at Kirksville a ticket from Kirksville to Dalton, and that at the time she so purchased the ticket, defendant’s agent directed her to take the 9:20 p. m. train for Moberly, and to get on the first passenger train going toward Dalton after she arrived at Moberly, and that she did so, and that the conductor took her ticket and refused to let her off’ at Dalton, but carried
2. If the jury find for the plaintiff they should assess the damages at a reasonable sum for loss of time and expense incurred in being taken from Dalton on to Brunswick, and from Brunswick back to Dalton, as they may believe from the evidence plaintiff is entitled to recover, not exceeding the sum of $5,000.
At the instance of the defendant the court gave the following instruction:
1. If the jury believe from the evidence that plaintiff purchased a ticket for a valuable consideration of defendant’s agent, and defendant thereby undertook to convey plaintiff as a passenger in its cars from Kirksville to Dalton, and that defendant’s servants failed to stop its train upon which plaintiff was lawfully a passenger for Dalton, at said station, but carried her on to Brunswick, then they, are instructed that plaintiff’s measure of damages is the sum the evidence shows plaintiff expended to enable her to return to Dalton, the value of the time lost, and the inconvenience she suffered thereby, but they must allow the plaintiff nothing for and on account of the mental anxiety or suffering endured by her on account of the sick or dying-condition of her daughter, occasioned by such delay in reaching her destination.
The jury returned a verdict for plaintiff and assessed her damages at $1,000, of which the plaintiff' remitted the sum of $250, and the court thereupon rendered judgment for the plaintiff for $750.
The judgment will he reversed and the cause remanded.