77 Mo. App. 196 | Mo. Ct. App. | 1898
This is an action which was commenced before a justice of the peace. The statement, amongst other allegations, contained the following:
“Plaintiff states that on said 7th day of November, 1895, at the railroad depot of the defendants at Carroll-ton, Missouri, he purchased from defendants’ station agent, a first-class ticket which was duly and officially stamped by said agent and which entitled him to passage as a passenger, over said railroad from said town of Carrollton, to said town of Hardin; that he purchased the same for passage on defendants’ west bound passenger train No. 1, which passed through Carrollton at about the hour of ten forty-five a. m. on said day, which fact was to said station agent of defendants well known. That he had no knowledge whatever • that said passenger train No. 3 was a limited train, and that it did not regularly stop at said town of Hardin.
“Plaintiff further states that upon the arrival of said passenger train at the town of Carrollton, he got upon the same for the purpose of taking passage to said town of Hardin; that at the time of getting upon said train, his said intention of riding to the said town of Hardin was to defendants’ said station agent, and to defendants’ servants and agents engaged in the management and operation of said train, well and fully known. That defendants’ said servants and agents acting in the course and within the scope of their
“Plaintiff states that after said train had left the town of Carrollton, the conductor in charge thereof, being one of the agents and servants of these defendants, upon examination of plaintiff’s ticket, refused to carry plaintiff to the town of Hardin or to stop at said town of Hardin, to permit plaintiff to there leave said train, but wrongfully, unlawfully, maliciously and by force, ejected this plaintiff from said train at the town of Norborne, in Egypt township, in said Carroll county, thus permitting plaintiff to ride only one half of the distance from said town of Carroll-ton to the said town of Hardin.
“Plaintiff states that he paid for said ticket the sum of sixty cents, that by reason of being put off at the said town of Norborne, he was delayed in the transaction of his business, was caused trouble, expense and loss of time, and mortification and injury to his feelings, and that by reason of the premises and of the wrongful and malicious act of defendants’ said servants and agents, he was damaged in the sum of two hundred and fifty dollars, for which he prays judgment.”
By again recurring to the plaintiff’s statement it will be seen that the ground of the action therein alleged is not the misdirection of the servants of the defendant whose duty it was to direct passengers but the ejection of plaintiff by the defendants’ conductor. The proxiinate cause of the damage is logically referable to the act of the former and not that of the latter. It is plain that the statement neither counts on the breach of the contract for passage nor upon the negligent mistake or misdirection of defendants’ servant and therefore no cause of action is stated unless it be for malicious ejection.
Having said this much of the plaintiff’s statement we may proceed to consider his instructions, which defendants insist are erroneous in expression. The first of these instructions told the jury that, if the plaintiff bought of defendants’ station agent at Carrollton a ticket to Hardin, that it was bought for passage on defendants’ train number 1, west bound, and that said agent knew this fact at the time he sold said ticket; and if the defendants’ brakeman on said train, acting within the scope of his employment, assisted and permitted plaintiff to get upon said train, knowing that plaintiff was seeking passage to Hardin; and if defendants’ conductor thereon, acting within the scope of his employment, ejected the plaintiff from said train at the town of Norborne and failed and refused to permit plaintiff to ride to Hardin, knowing that plaintiff had then and there a ticket bought for passage to Hardin,
If all the facts assumed in the plaintiff’s first instruction were found by the jury this did not entitle plaintiff to passage to Hardin on that train unless it was required under the rules of the company to stop there, or that it habitually did so. This last essential fact was omitted from both the plaintiff’s statement and his instruction so that it is quite impossible to see how there could be a recovery on either theory of his instructions. As the plaintiff’s statement did not allege that the defendants’ train habitually stopped at Hardin, or that the conductor had the right under the defendants’ rules to stop there for the purpose of affording passengers an opportunity to leave it, it is clear that the plaintiff’s second instruction was improper in theory and had no rightful place in the consideration of the case.
The only cause of action which is alleged in the plaintiff’s statement, as has already been observed, was the malicious ejection of the plaintiff by the defendants’ conductor. No instruction presenting this theory to the jury was requested. The uncontradicted evidence shows that the plaintiff entered a train for passage to Hardin that did not habitually stop there, and that so soon as the conductor was apprized of the fact he notified plaintiff that he must leave the train at Norborne. That when the train reached the latter station the plaintiff refused to leave the train and thereupon the conductor ejected him using, as it is admitted, no more force than was necessary to accomplish this. There is no claim that the conductor was rude, uncivil or insolent in his behavior towards the plaintiff. After the plaintiff had received the conductor’s notice that the train did not stop at Hardin and had been requested to leave it at Norborne, and after he had been afforded an opportunity to do so and had declined, he was wrongfully on the train and the conductor was then authorized to eject him, provided he acted in good faith and without malice and used no more force than was necessary. There was no evidence adduced which justified the submission of the case to the jury on the theory of malicious ejection. Quite a different case from that alleged in the plaintiff’s statement was submitted to the jury by the instructions for plaintiff.
If the plaintiff, as the evidence tends to show was the fact, through the negligent mistake of the servants of defendants whose duty it was to direct passengers, entered a train which, under the rules of defendants, did not stop at the station named in his ticket, in consequence of which he could not continue passage on that train and was compelled to leave it before reaching his destination and was thereby subjected to any
The judgment must be reversed and cause remanded-.