Hicks v. Hannibal & St. Joseph Railroad , 68 Mo. 329 ( 1878 )

Norton, J.

This suit was instituted in the Livingston county circuit court for damages. The petition alleged the •incorporation of defendant, and that, on the 9th day of September, 1874, Mrs. Sarah flicks, wife of her co-plaintiff, E. M. Hicks, and her two infant children, were received by defendant, into its passenger train, at Kansas City, Missouri, to be carried to Utica, Missouri, she having purchased a ticket for passage between said points ; that on the arrival of said train at Breckenridge, a station about ten miles west of Utica, the defendant, by its conductor and agents, by force, and against the will, consent and protest of Mrs. Hicks, ejected and put her out of said passenger train at about the hour of ten o’clock at night, where she' remained exposed to the cold for about one hour, when a freight train arrived on which she took passage and was carried to Utica; that in consequence thereof, she and her children were greatly exposed and made sick, and that she had sustained damage in the sum of $1,000. Except as to the incorporation of defendant, the answer contained a specific denial of the allegations of the petition. On a trial of the cause plaintiffs obtained judgment for $700— $200 of which was remitted — and from this judgment defendant has appealed, and assigns for error the action of the court in refusing to receive legal evidence, and in giving improper and refusing proper instructions.

L During the progress of the trial defendant asked witness McCoy who was telegraph operator at Utica, what defendant’s regulations were as to passenger train No. 4 (which was the train on which Mrs. Hicks took passage) stopping at Utica station ? The court refused to allow the witness to answer.

i. railroad?: dence^not reiVvant tó the issues.

It will be observed that the answer of defendant does not set up any regulation of the company requiring said train not to stop at said station. It only traverses the petition and puts in issue the facte therein alleged. The.evidence offered was not relevant to any issue made by the pleadings. If defendant intended to rely upon a regulation of the company, showing that the train upon which Mrs. Hicks was a passenger, did not stop at Utica, it should have been pleaded and set up in the answer, so as to have afforded plaintiffs an opportunity of putting it in issue, and preparing to meet it at the trial. No such issue having been tendered in the pleadings, it could not be made in the evidence. Greene v. Gallagher, 35 Mo. 226.

2- ——: :

Defendant, after showing by the conductor of the freight train, which carried the plaintiff from Breckenridge to Utica, that it left the former place ten minutes behind the passenger, andby McCoy, the agent of defendant at Utica, that it reached the latter place fifteen minutes behind the passenger, offered the register kept by the train dispatcher, for the purpose of showing that the passenger train left Breckenridge at‘8:53 p. m., and arrived at Utica at 9:20 p. m:, and that the freight left Breckenridge at 8:55 p. m., and arrived at Utica at 9:35 p. m. This evidence the court rejected. As plaintiff’s right to recover was not dependent on the length of time she remained at Breckenridge, and as the facts sought to be proven by the register had been fully established by the evidence of the agent at Utica and the conductor of the freight train, the rejection of the evidence even if, in strictness, it was receivable, will not justify a reversal, it not appearing that defendant was prejudiced thereby.

II. The instructions given by the court are applicable to issues made in the pleadings, and are justified by the evidence. Mrs. Hicks, who was examined as a witness, testified that after purchasing her ticket at the office of defendant in Kansas City, she exhibited it to the baggage master who checked her baggage to Utica; that it was put on the train in question by defendant’s agents, and that they assisted her in getting into the car ; that, after the train had left Kansas City the conductor told her he would not stop at Utica, that upon the arrival of the train at Breckeuridge, a station some miles distant from Utica, she was requested to get off, which she declined to do, whereupon ' the conductor used harsh language and swore at her, and said by G- — d if you don’t get off I will have a man put you off, and thereupon sent a brakeman who took her little girl and she took her baby and basket and followed him ; ■that this occurred about nine o’clock at night, that she remained at Breckenridge in the dark, and exposed to the cold for about one-half hour, when the freight train came along, to get into which she had to walk in the dark with her children the length of thirty cars;- that she arrived at Utica between ten and eleven o’clock, and was made sick by the exposure to which she had been subjected. It was also shown by another witness that the passenger train did, ■in fact, stop at Utica and put off the baggage of Mrs. Hicks, and by another that it stopped because a freight train was in the way. In the estimation of damages the jury were confined by the instructions given for plaintiff’s, as well as those given .for defendant, to the damage sustained by Mrs. Hicks, and are not, therefore, subject to the objection made by defendant that, under plaintiffs’ instruction, the jury were authorized to give damages for the time lost by Mrs. Hicks. The fifth and sixth instructions simply declare that her right to a judgment was not affected by the length of time she was compelled to wait for another train. They did not direct nor authorize a recovery for loss of time, and are not inconsistent with the second instruction given for plaintiff, or the first given for defendant. The suit was prosecuted in favor of the wife, as the meritorious cause of action, to recover for personal injuries and physical suffering sustained by her, and to such recovery she was confined by the instructions. The husband was but a nominal party, and no recovery was sought by him for injuries to the wife. Smith v. City of St. Joseph, 45 Mo. 449, and 55 Mo. 456.

3.-;--: punitive: instructions as to, justidence-

Defendant’s third instruction, which asked the court to tell the jury that plaintiff could not recover punitory, but ouly actual damages, was properly re- ^ ° x A , fused. “ when malice, violence, oppression or wanton recklessness mingle in the con-

troversy, vindictive damages may be allowed.” Kennedy v. North Mo. R. R. Co., 36 Mo. 364. The plaintiff, with two infant children, had intrusted herself to defendant to he carried to her destination. The conductor in violent, unbecoming and insulting language, threatened to eject her from the train, and sent a brakeman to execute the threat, who did execute it by taking one of the children and carrying it off, thus forcing her to follow with her remaining child. There was sufficient evidence to justify the court in not withdrawing from the jury the question of punitory damages.

i RAILROADS-seSR“sTmS be brought.

The fourth instruction was properly refused under the authority of Dixon v. Hannibal & St. Jo. R. R. Co., 31 Mo. 410, and Wag. Stat, § 28, p. 9Q4

5. _. lnstruc_ *ions-

The sixth of defendant’s instructions was properly refused, because there was no evidence to support it, and for the reason hereinbefore given, sustaining the action of the court in not receiving evidence to show the regulation of the company in regard to the stoppage of trains at Utica. We have been cited to the case of Pittsburgh, &c., Ry. Co. v. Nuzum, 50 Ind. 141, as authority against the action of the court in giving plaintiff’s third, and refusing defendant’s sixth instruction. In that case the plaintiff had purchased a ticket from Union City to Sweetser, and the conductor of the train on which he was being carried having refused to stop at Sweetser and let him off, he sued for the injury. The answer of defendaut admitted the facts stated in the petition, and set up, by.way of justification, that defendant ran two daily trains from Union City to Sweetser, which stopped at the latter station, and also a through train from Columbus to. Chicago which was not allowed to stop at Sweetser, and that it was upon this latter train that plaintiff' had taken passage. On the issue thus presented in the answer, it was held that it was the duty of a passenger to inform himself when, where and how he could go or stop, according to the regulations of the company’s trains, and that if he made a mistake, which was not induced by the company, he had no remedy. It was also held that when a passenger is induced by the company to take a train which, according to' its regulations, does not stop at a particular station, it is the duty of the company to let him off at such station notwithstanding the regulation. Stress was also laid upon the fact, that it was set up in the answer, that the train which plaintiff entered did not stop at Sweetser, and that defendant ran two other daily trains that did stop there.

In the case before us no such issues are presented in the pleadings, and the questions arising in that case do not arise in this. Besides this, if it had been alleged in the answer of defendant that by its regulations, the train upon which Mrs. Hicks entered, did not stop at Utica, her uncontradicted evidence that she was induced to enter the train by defendant’s servants, would, under the principle announced in the case of Pittsburgh, &c., Ry. Co. v. Nuzum, supra, give her a right of action for any injury sustained by reason of the failure of defendant to stop at said station and let her off. Judgment affirmed,

the other judges concurring.

Affirmed.