Gardner v. St. Louis & San Francisco Railroad

93 S.W. 917, 117 Mo. App. 138, 1906 Mo. App. LEXIS 41

• Court: Missouri Court of Appeals
• Decided: March 13, 1906
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts).

1. The contention of defendant is that if plaintiff has any cause of action, it is based upon the failure of the railroad company or its agent to sell or furnish him a ticket and certificate and not on the fact that lie was put off the train by tbe conductor for tbe reason he had no ticket. It is well-settled law that a railroad company, being a carrier of both freight and passengers, may use separate trains for freight and for passengers and may exclude freight from one and passengers from the other. [Whitehead v. Railway, 99 Mo. 1. c. 268, 11 S. W. 751; Farber v. Railway, 116 Mo. l. c. 92, 22 S. W. 631.]

In B. & M. R. R. Co. v. Rose, 11 Neb. 1. c. 181, the court said: “We believe the authorities are generally in accord as to the right of a railroad company to> make, and, in a proper manner to enforce, a rule or regulation to carry passengers on its freight trains, either not at all, or only upon the condition that they are provided with tickets, and prohibiting the collection of fare by conductors of such trainsciting Chicago & Alton R. R. Co. v. Flagg, 43 Ill. 364; Arnold v. I. C. R. R. Co., 83 Ill. 273; Eaton v. Railroad Co., 15 Am. Repts. 513; The C. C. & C. R. Co. v. Bartram, 11 Ohio St. 457; Law v. Cent. R. Co., 32 Iowa 534. A like ruling was made in Thomas v. Railway Co., 72 Mich. 355;

Rorer says: “Their [railroad companies’] business implies a degree of authority almost absolute in the management, conducting and controlling their trains and the persons thereon as necessary for their common safety, and to protect themselves from imposition and wrong. Among these matters of control are . . . the manner and place of- procuring tickets, and of paying fare; the evidence thereof required to be shown to' the conductors in charge of trains.” [1 Rorer on. Railroads, p. 227.] The same author, in volume 2, page - 986, says: “The company may make and enforce rules against carrying passengers upon freight trains; but if they hold - themselves out to the public to carry passengers on such trains, then they are bound to carry accordingly,. to the extent and in the manner, in which they thus profess to the public an intent to carry, and must afford a reasonable opportunity to obtain tickets as in other cases, or else may not discriminate as for want of tickets.”

In Chicago & Alton R. R. Co. v. Flagg, 43 Ill. 364, the railroad company regularly carried passengers on its freight trains. Flagg, who was desirous of traveling a short distance on the road, entered the caboose car attached to a freight train without a ticket, which he was unable to procure for the reason the ticket office was closed. The rules of the company forbade the conductor to receive money for fares. Flagg offered to pay the conductor his fare and explained to him that he could not get a ticket for the reason the office was closed. The conductor refused to receive his fare, stopped the train at a water tank and required Flagg to leave the train. The jury gave Flagg a verdict for one hundred dollars, for which judgment was rendered. The judgment was affirmed on appeal. In discussing the case, Lawrence, J., writing the opinion, at page 366, said: “When the company requires tickets to be purchased at the station, it must furnish convenient facilities to the public by keeping open the office a reasonable time in advance of the hour fixed by the time-table for the departure of the train. Should it fail to do this, a person desiring to take passage would have the right to- enter the train and be carried to his place of destination by payment of the regular fare to the conductor. To permit a company to complain of a violation of its own rules necessitated by the negligence if its own agents, would be absurd. If, then, as is fairly inferable from the evidence, the plaintiff was prevented from buying a ticket by the absence of the ticket agent, he was rightfully on the train, and his expulsion was unlawful.”

The texts quoted from Rorer and the Flagg case are approvingly cited in Cross v. Railroad, 56 Mo. App. 664. .

. But it is insisted that as plaintiff did not hold itself out as a carrier of passengers on its- freight trains,- and as its permit to plaintiff to be carried on such train was a private arrangement between tbe company and the plaintiff, the company did not owe him the same duty it would have owed him had it held itself out as a carrier of passengers on its freight trains — that as to him it was a private carrier. It seems to us this contention is more specious than sound. The defendant had the right to carry or not to carry the plaintiff, or any other passenger, on its freight trains, but when it agreed to carry plaintiff upon such trains at any and all times, when he should desire to travel thereon as to him it was a common carrier of passengers and could not alter this relation by refusing to carry on such trains the traveling public generally or any person other than the plaintiff, and we think both upon reason and authority, plaintiff was wrongfully put off the train and that defendant is liable.

2. The verdict was for sixty-five dollars actual and seventy-five dollars punitive damages. It is contended by the defendant that the act complained of was not unlawful and wanton or malicious, and for this reason punitive damages should not have been recovered. In actions for personal torts the law in this State is, that punitive damages cannot be recovered unless the act complained of is both unlawful and wanton and malicious. [State v. Jungling, 116 Mo. 162, 22 S. W. 686; Ickenroth v. St. Louis Transit Company, 102 Mo. App. 1. c. 616, 77 S. W. 162, and cases cited; Dorsey v. Railway, 83 Mo. App. 528.] Hands were not laid upon the plaintiff by the conductor or any of the train crew; no violence was done or offered to him. Plaintiff testified, however, that the conductor seemed to be angry, cursed and swore at him and refused to look at his permit; that he would not listen to reason, and as he left the train said to him, “By God, the next time you ride on my caboose have the dope.” The plaintiff was rightfully upon the train and having, in good faith, offered to' pay his fare was entitled to courteous and gentlemanly treat-' ment by the conductor. According to his evidence he did not receive it, but was grossly insulted by tbe conductor and wrongfully put off the train. Plaintiff’s evidence tends to show tbat in expelling him from tbe train tbe conductor was actuated by malice, and we think tbe jury was warranted in assessing exemplary damages.

Tbe judgment is affirmed.

All concur.