Powell v. St. Louis & San Francisco Railroad

129 S.W. 963, 229 Mo. 246, 1910 Mo. LEXIS 176

Opinions

FOX, C. J.

— This cause is pending in this court upon appeal by the defendant railroad company from a judgment of the circuit court of the city of St. Louis in favor of the plaintiff in the sum of five thousand dollars.

This is an action to recover damages for the death of plaintiff’s husband, W. B. Powell, which occurred at Pacific, Missouri, on July 23,1905, as a result of being struck by a passenger train operated by the defendant. At the time of the death of plaintiff’s husband he resided with his wife in the city of St. Louis. Pacific is situated 36 miles southeast of St. Louis, and both the defendant railway company and the Missouri Pacific Railway Company pass through the town of Pacific. Plaintiff’s husband was struck by the west-bound train of the defendant near where Elm street joins the defendant’s tracks in Pacific, while he was walking between the main tracks of defendant in a westerly direction with his back to the engine that struck him.

The petition of the plaintiff embraced three counts, but at the close of the plaintiff’s case the-circuit court held that the evidence was insufficient to justify the submission of the cause to the jury upon either the second or third counts; hence the cause, when all the evidence was heard, was submitted to the jury upon the first count alone. This count in substance alleges that plaintiff was the widow of William B. Powell, and that the defendant was at all times mentioned, and is now, a railroad corporation doing business as a common carrier in and by virtue of the laws of this State, and operating a steam railroad from the city of St. Louis to and through the town of Pacific, in the county of Franklin; that on the 23d day of July, 1905, defendant received her husband at the town of Pacific as a passenger upon one of its trains, and for a valuable consideration, then and there paid by the said William B. Powell to defendant, agreed to carry him safely to the city of St. Louis; that shortly after said William B. Powell had become a passenger on said train of defendant, the conductor in charge of said train came to said Powell and asked him for his fare; that said Powell tendered said conductor a railroad ticket issued by defendant, 'the destination of which was St. Louis, which ticket the defendant’s conductor received and accepted, and after having accepted the same, then demanded of said William B. Powell further compensation as passenger on said train, which compensation the said Powell offered and agreed to pay and actually tendered to said conductor in good and lawful money; that said conductor refused to accept said sum of money so demanded by him and tendered to him by the said Powell, but then and there ordered said Powell to get off of the said train; that said Powell again offered to pay and again tendered said conductor said sum of money as additional fare for conveying and carrying bim as a passenger from Pacific to St. Louis. That thereupon said conductor summoned other employees of the defendant, members of the train crew in charge of said train, and the said agents and servants of defendant with force and violence willfully and wrongfully ejected said William B. Powell from said train. And plaintiff avers that by reason thereof and as a direct result of such wrongful ejectment said William B. Powell was left by the defendant on its right of way and in a place of great danger, a great distance from the town of Pacific or any other station or usual stopping place, and a great distance from any dwelling house or light or platform, and that the time of such ejectment was 9:30 o’clock at night; that it was very dark at said place where said Powell was ejected, and there was a steep incline and ditch on either side of the railroad tracks of defendant and there was no house or light near said place to give the said Powell information whereby he might find a place of safety; that while her said husband was in the exercise of ordinary care in attempting to extricate himself from said place of danger and reach a place of safety, and while at and near said place of ejectment, and shortly thereafter, one of defendant’s trains, in charge of the employees of the defendant, struck said William B. Powell with such great force and violence, while running at a rapid- rate of speed, as to throw him against the ground with such force and violence as to inflict mortal injuries from which said husband died shortly thereafter, without any fault or negligence .on his part. Plaintiff averred her damages to be the sum of ten thousand dollars.

The answer was a general denial, and for a further defense the defendant admitted that it was then, and was at all times in said first count mentioned, a railroad corporation doing business as a common carrier in and by virtue of the laws of this State; that on or about the 23d of July, 1905, said William B. Powell received injuries which resulted in his death, but the defendant denies that such injuries or any of them and the death of said deceased were caused by or resulted from any carelessness, negligence or wrongful act, omission or default of the defendant or any of its agents, servants and employees, but, on the other hand, avers the said death of the deceased was caused by his own carelessness and negligence; that at the time he received his said injuries and death he was negligently and unlawfully walking and trespassing upon the railroad roadbed and property of the defendant and negligently and carelessly failed to look or listen for approaching trains and cars and negligently failed to avoid being struck or injured by any train upon said railroad, by reason of which negligence and unlawful conduct, he received said injuries from which his death resulted.

The testimony developed upon the trial of • this cause as disclosed by the record is quite voluminous and we do not deem it essential to reproduce it in detail. It will suffice for the purpose of enabling us to determine the legal propositions, to briefly indicate the facts which the testimony tends to establish.

The record discloses that plaintiff’s husband, William B. Powell, on the evening of the accident, took passage on one of defendant’s trains leaving Union Station at 8:21 and remained upon said train until it reached Pacific, where he alighted and at about 9:30 p. m., which obviously was only a few minutes after he alighted from the other train going west, boarded an east-bound train of the defendant railway company and took a seat in a coach about the third seat from the door on the right side of the car. The testimony tends to show that shortly after the train pulled out of Pacific the conductor approached Mr. Powell; upon the conductor first calling for a ticket or fare Mr. Powell paid no attention to him; then followed a controversy between the deceased Powell and the conductor with reference to the transportation. Finally Powell gave the conductor a ticket from Eureka, a station further east of defendant’s line, to Tower Grove, a station inside the city limits of St. Louis, which ticket the conductor accepted, but told Mr. Powell that he would have to pay his fare in money for the intervening distance from Pacific to Eureka; the conductor told Mr. Powell that the fare from Pacific to Eureka was 28 cents. Then followed a dispute about that — Mr. Powell contending that the fare was less — that it was only 16 cents. Powell still refusing to pay his fare the conductor informed him that he was going to put him off the train and summoned some of his crew to assist him, and he was, at a point somewhere near the Frisco pump station, removed from said train. There was evidence on the part of the plaintiff that Powell, after realizing that the conductor was going to put him off the train and had summoned some of his crew to assist him, tendered the conductor fifty cents out of which to take the fare, before the conductor undertook to eject him.

The record discloses a sufficient amount of testimony tending to establish the fact in dispute, that the plaintiff’s husband boarded the train with the intention of becoming a passenger and tendered the conduct- or the amount of his fare, to authorize the submission of this question to the jury. On the other hand the testimony on the part of the defendant tends to show that no tender was made of the fare which the conduct- or had the right to collect. The conductor positively denies that such a tender was made; however, on cross-examination, he testified that he heard a half dollar drop on the platform while he and other members of the train crew were putting Powell off the train; as to what party dropped the half dollar or to whom it belonged he did not know. The conductor also testified that he accepted the ticket from Eureka to Tower Grove and turned it in with his report of the day, and that he agreed to take Powell on to Tower Grove if he would pay twenty-eight cents for his passage from Pacific to Eureka; but the conductor further testified that, upon the refusal of Mr. Powell to pay his fare from Pacific to Eureka, in accordance with the rules, he made up his mind to put him off the train and that he tendered Powell back the ticket that he had taken up from him from Eureka to Tower Grove, but that Mr Powell did not accept it. The conductor testified that when he approached plaintiff’s husband to collect fare Powell not only refused to pay fare, but stated to him that he had brought him out to Pacific and that he would have to take him back. The record also discloses that counsel for plaintiff, upon cross-examination of the engineer, sought to show that Mr. Powell was in the habit of traveling upon the trains of the defendant and that in traveling upon such trains he would pay his fare. In this cross-examination counsel for plaintiff made the following inquiries and received answers thereto: “Q. Had he ever been a passenger on your train before? A. Yes, sir. Q. How often? A. Twice. Q. Do you remember when that was? A. On the 4th day of July was once, Q. The 4th day of what July? A. 1905. Q. Well, when was the other time? A. I don’t remember the other time. Q. Where were you going when he was a passenger on the 4th of July? A. Pacific, Missouri. Q. From where? A. St. Louis. Q. Did he pay his fare that day? A. He paid it a part of the way and tried to beat me the rest. Q. Did you collect it for the rest of the way? A. Yes, sir. Q. How far did he pay? A. Paid from Valley Park to Mincke. Q. Did you have a controversy with him that day? A. Yes, sir. Q. Did you threaten to put him off that time? A. No, sir.”

James Starks, a Frisco train porter, was offered as a witness by the defendant and upon the court sustaining an objection to his testimony which was being sought by the defendant, counsel for defendant made the following tender of proof by this witness: “The defendant expects to show by this witness that W. B. Powell, plaintiff’s deceased husband, on the evening of July 23, 1905, boarded train No. 5, which left St. Louis Union Station at 8:21, and that when he; boarded this train, the witness upon the stand, who was a porter on that train, inquired of Mr. Powell where he was going and Powell answered, ‘ Springfield, Missouri;’ that this porter knew that Powell was a constant traveler on the Frisco line to Springfield and other points beyond Springfield; that after Powell had "boarded the train and taken his seat a train collector came through the train and requested the fare of Mr. Powell; that Mr. Powell purchased a commutation ticket entitling him to ride on trains running between St. Louis, Missouri, and Eureka, Missouri, and tendered this commutation ticket as fare, stating that he desired to disembark from the train at Eureka; that the collector, who was authorized to collect tickets, stated to Powell that the train did not stop at Eureka and that he could not carry him to Eureka; that Powell refused to pay other fare; that this train No. 5 was^followed out of St. Louis within the next 20 minutes by train No. 7, which was also a fast train, and that the conductor did not stop the train and remove Powell therefrom because of the close proximity of the running time of the two trains upon the same track, it being dangerous to do so, but carried Powell to Pacific, Missouri, and did not accept any fare from Powell, and that when the train reached Pacific, Missouri, Powell left the train.”

R. E. Core, a train collector, was offered as a witness by the defendant and the court again sustained objection to his testimony, and the offer and tender to make the same proof as by witness James Starks was made. This offer of proof by the two witnesses named was rejected by the court, whereupon counsel for defendant duly preserved its exceptions to the action of the court in excluding the offer.

The evidence as disclosed by the record as to the exact point at which plaintiff’s husband was removed from the train, as well as the nature and character of the barrow pits and ditches on the sides of the track from the point of removal to the place of the accident, is very much in conflict. According to some of the witnesses the place where plaintiff’s husband was ejected from the train was east of what is known as the Frisco pump house, about a half mile from the station house at Pacific, and outside of the city limits of Pacific. Other witnesses located the point near the Frisco pump house, which Avould make the distance less than a half mile from the station house at Pacific, and others locate it west of the Frisco pump house, expressing the opinion that the distance from the point of removal to Pacific was only about one quarter of a mile.

Upon the question as to the condition of the sides of the tracks from the point where plaintiff’s husband was removed from the train to where the accident occurred at Elm street, the disclosures of the record are very unsatisfactory. The plat as introduced in evideuce indicates or shows that on the north side of the track near the Frisco pnmp house there was a ditch 8 and 8-10 feet below the track. Toward Pacific from the pump house, following the track west as you approach Pacific from the pump house, the ditches or barrow pits on either side of the track grow more shallow. At a point about midway between the pump house and where the accident occurred on Elm street the plat indicates a ditch on the north side of 2 and 3-10 feet below the track, and on the south side a barrow pit 3 and 2-10 feet below the track, and about two-thirds of the way from the Frisco pump house to Elm street where the accident occurred, the plat shows on the south side of the track a barrow pit 2 and 6-10 feet below the track, and on the north side doesn’t show any ditch or pit whatever. At the place where the accident occurred the plat indicates on the south side of the track a barrow pit 5 and 6-10 feet below the track; on the north side there was a space between the north rail of the defendant’s track upon which plaintiff’s husband was walking, and the south rail of the transfer track, of 9 and 6-10 feet. On the north side of the space of 9 and 6-10 feet between the Frisco track upon which the plaintiff’s husband was walking and what was called the transfer track, and also north of the transfer track,- there were five or six other tracks.

The record further discloses that 25 or 30 feet north of the Frisco tracks near the point where this accident occurred, there was an engine or train on the Missouri Pacific track, that is, there was a freight train going west with a pusher engine behind it. This engine was pushing the freight train on the Missouri Pacific tracks west. The fireman on the Frisco engine at the time of this accident testified substantially that before the engine reached Mr. Powell he observed on the Missouri Pacific track the pusher engine pushing the freight train as above stated. Inquiry was made of this fireman as to whether this engine on the Missouri Pacific was making a noise; Ms answer was “an ordinary noise; just the ordinary noise like any other engine would make.” Inquiry was made as to whether or not the engine was making the noise those engines make when they are pushing a train, that is, a heavy noise; he replied to that question, “Just the exhaust, that is all.” The inquiry was then made as to whether the exhaust noise was not a considerable noise, and his reply to that was, “Well, it is not a very loud noise; just an ordinary noise.” This fireman further testified that the engineer on the Missouri Pacific engine blew the whistle two or three times; he also said that, he heard the bell on the Missouri Pacific engine ringing; stated further that Mr. Powell, plaintiff’s husband, apparently had his head turned toward the Missouri Pacific train.

The civil engineer, Mr. Skelly, who made the plat for plaintiff, testified that between the north rail of ■the Frisco and the south rail of the transfer track there was a distance, as heretofore indicated, of 9 and 6-10 feet. He also testified that from the end of the ditch as indicated on the map, which is about midway, between the Frisco pump house, near where plaintiff’s husband was removed from the train, and Elm street where the accident occurred, on the north side of the Frisco track to a point only a few feet east of Elm street, was good walking; that the only obstruction on the north side of the Frisco track was the tracks heretofore spoken of, and the nearest track to the Frisco on the north side was a distance of 9 and 6-10' feet away; this furnished ample and sufficient distance to enable a person to walk from the end of the ditch, about midway between the pump house and the place of the accident, to the point of the accident and be clear of trains on the tracks of the Frisco or upon the tracks north of the Frisco. This witness further testifying stated that the depression on the south side of the track, which was termed by one of the counsel for plaintiff “a ditch,” was simply the result of building up the roadbed; in other words, that it was largely a barrow pit. Inquiry was then made of the witness as to what a harrow pit was. His answer to that was that it was “a ditch excavated in order to obtain material for the embankment. ’ ’ He also stated that the railroad right of way, after you leave the embankment, is substantially level; in other words, he says that upon leaving the embankment and reaching the bottom of the harrow pit, it is then level with the contiguous land south and practically level with the yards of two little houses situate near there. In seeking an explanation of what this depression of the ground amounted to, this question was asked: “Q. So whatever depression there is, is simply the depression from the top of the embankment where the tracks are; there is a gradual slope down to the level of the ground and then the ground is level, isn’t it? A. Practically level.”

Witness D. S. Campbell, who was the train conductor for the Missouri Pacific, testified that he saw Mr. Powell walking on the Frisco track; that he was covered by the electric light from the engine that struck him; that he heard the whistle of the engine. He says at first that the engineer whistled as if he was going to whistle for the station, hut he finally came to giving danger signals and that is what first attracted his attention, hut he says that he saw Powell a little hit before the whistle blew. This witness then proceeds in his testimony to explain that.as the Frisco train came around the curve the headlight fell on the Missouri Pacific engine and then swung over to the south, and “when the headlight swung around on the Frisco main track and when the light came straight upon the track I saw some man on the track. ’ ’ In answer to an inquiry this witness substantially stated that he did not know whether he saw the electric light when it first “lined up” upon the Frisco track or not, hut in substance stated that he did know that when he looked over there he saw this man walking on the track and about that time he heard the danger signal given. In answer to the question as to how far away was this train from the man when he first saw him, he says: ‘I can’t say how far it was away from him; it is pretty hard to tell by looking at an electric light how far it is away; I should judge two or three hundred feet or more.” He further testified that he heard the danger signals distinctly; that they consisted of sharp blasts of the whistle and that Mr. Powell walking along on the track didn’t pay any attention to either the electric light that was then over him or the sharp blasts of the whistle. This witness in substance further testified that the track was right smooth and clear on the north side and that there was nothing to prevent Mr. Powell from stepping off the track there. In the opinion of this witness there was plenty of good walking between the Missouri Pacific track and where Powell was standing or walking on the Frisco track. He also stated that Mr. Powell was on the Frisco track going toward the depot west; that he was standing erect, so far as he knew, and was walking along as any man would walk along and that he did not notice anything peculiar about him.

The engineer operating the engine that struck Mr. Powell testified that his engine came around the curve and was within 75 or 125 feet of Powell before he saw him, and that the engine was running at a rate of 35 miles an hour, and .that he used every effort with the appliances he had at hand to check the train before striking Mr. Powell; that he sounded the signal blasts and whistled continuously with the view of attracting his attention, but that he seemed to pay no attention either to the electric light covering him from the engine approaching him from behind-or the continuous blowing of the whistle.

John Raby, who was the city marshal at P'acific, was introduced as a witness for the plaintiff. His testimony tends to show that he was familiar with the condition of the ground on each side of the Frisco track at and near the point of this accident. This witness explained how far the electric light on the engine on the Frisco track would extend in front of the engine, and the effect of his testimony is that thé electric light on the engine that struck Mr. Powell covered him for a number of feet before the engine ever reached him. This witness also testified that he heard the danger signal blasts of the whistle that were sounded by the Frisco engine on the evening of this accident. The following questions were propounded to this witness concerning the subject of a dwelling house and the facilities for walking along on the sides of the railroad track:

“Q. If a man were to get off of a train on the Frisco railroad near either one of the pump stations, he would be near a dwelling house, would he not? A. Yes, sir.

‘ ‘ Q. "What is the last house in Pacific, immediately adjacent to the Frisco right of way; is there any house below Kennedy’s house? A. Yes, sir; John Lewis’s house is the last one.

“Q. How far is it, then, from John Lewis’s to the Runyan house? A. One-fourth of a mile.

“Q. There is not any point between the depot in the city of Pacific and the Runyan house where a man could be put off the Frisco Railroad without being at •'least one-eighth of a mile of a dwelling house, is there? A. No, sir.

“Q. Mr. Raby, if a man were to get off a train down near either of the pump stations, by following the path that you mentioned in.your evidence could he not reach the city of Pacific without walking on the main track of either of the railroads? A. Yes, sir.

“Q. And he would be out of danger, would he not? A. Everywhere except on the culvert.

“Q. Even at the culvert there is room enough at the side for him to walk along? A. Yes, sir.

“Q. That is the fact as to — speaking now of the property of the railroad right of way out at the place where Deighton Lewis lives — if a man were on the Frisco tracks' walking west and the Frisco train were coming from the east and should sound the danger signal for the purpose of getting him to leave the tracks and seek a place of safety, what is the fact as to whether he could step off either side there without danger to himself? A. A man could step off either side there without hurting himself at all. . . .

‘ ‘ Q. Mr. McIntyre asked you about the depression that was between the tracks down there that you said, I believe, led up to the transfer track; now, then, you never did see that at any time when it was grown up in underbrush, did you? A. No, sir; just swamp grass.

“ Q. It is no trouble for a man to walk along there ? A. No, sir.”

C. J. Slocum, who was the fireman on the Missouri Pacific train heretofore spoken of, on the evening of the accident, was introduced as a witness by the plaintiff. He seemed to be familiar with the condition of the ground on the sides of the Frisco railroad track and testified upon that subject as follows:

* ‘ Q. I understand you to say, at the time you heard this danger blast sounded, that you were on the left-hand or north side of the Frisco track and for that reason, among others, you did not see what was going on over there? A. Yes, sir.

“Q. Mr. Slocum, at the time that danger signal was sounded, if there had been on the track of the Frisco a man walking ahead and west of the Frisco train on the main track 150 or 200 feet west of the Frisco train, what was there to prevent that man from stepping off on either side and to a place of safety? A. There was nothing at all.

“Q. There was no bad places there — is there? A. No, sir.

“Q. There have been some questions asked about a depression between the two railroad tracks down there near the pump station, can you tell us about that? A. Down about the pump station the Frisco is built on a fill. •

“Q. What is the fact as to the Missouri Pacific being built on a fill there? A. There is a depression between the two tracks there.

“Q. That depression is not a ditch with water in it, is it? A. No, sir.

“Q. That depression, so far as you know, never has been grown up in underbrush? A. No, sir.

“Q. If a man wanted to stepoff the train tracks of the railroad there, there would be a reasonably good place for him to walk in that depression between the two tracks, where he would be safe from passenger trains? A. Yes, sir.

“Q. There is no occasion is there, Mr. Slocum, for a man who wants to come in the vicinity of the pump station west to Pacific to walk on the main tracks of the railroad, either railroad, unless he voluntarily desires to walk in that place? A. No, sir.

“Q. He can walk on one side or the other and be safe, if he wants to? A. Yes, sir.....

“Q. Mr. Slocum, is the character of the depression between the Missouri Pacific tracks and the Frisco tracks from the pump house west, the same now as it was on the 23d of last July? A. I think it is.

“Q. There has been no change there? A. I don’t know of any.”

It is further disclosed by the testimony of the engineer and fireman on the engine that struck Mr. Powell that there were some men on the Missouri Pacific train hallooing, as they supposed, at Mr. Powell. The record further tends to show that Mr. Powell, as the engine approached from behind him, was walking erect, at least seemingly so and walked' along leisurely. The engineer in his testimony says “there was nothing to indicate that he could not take care of himself,” and further states that he blew the whistle very rapidly and constantly from the time he discovered Mr. Powell upon the track. The testimony of the fireman as to Mr. Powell walking in the middle of the track leisurely and the blowing of the whistle rapidly and constantly before he was struck substantially corroborates the testimony of the engineer.

This sufficiently indicates the nature and character of the testimony upon which this cause was submitted to the jury. At the close of the evidence the court instructed the jury. Proper attention will be given the instructions during the course of the opinion. The cause being submitted to the jury they returned a verdict finding the issues for the plaintiff and assessing her damages at the sum of five thousand dollars. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment was rendered in accordance with the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The record before us in this cause discloses the assignment of three grounds on the part of the appellant for the reversal of this judgment. They may be briefly stated as follows:

First: Because upon the evidence as disclosed by the record the ejectment of plaintiff’s husband was justifiable.

Second: If the ejectment of plaintiff’s husband was not justifiable, nevertheless it was not the proximate cause of his death.

Third: It is earnestly insisted that the plaintiff’s husband was guilty of such contributory negligence as made it the duty of the trial court to declare as a matter of law that plaintiff was not entitled to recover.

Directing our attention to the first proposition, that is, as to whether or not upon the disclosures of the evidence Ihe conductor was justified in removing plaintiff’s husband from the train, it is well to keep in /mind the directions of the court embraced in the instruction as given.for the plaintiff. This instruction *was in these words:

“The court instructs the jury that if you believe from the evidence that the said William B. Powell at the time of his death was the husband of the plaintiff and that this suit was brought within six months after his death, and if you further believe from the evidence that on said date the said Powell boarded one of defendant’s east-bound trains at the town of Pacific, Missouri, with the intention of becoming a passenger thereon, and that thereafter the said Powell, before said train had been stopped by said conductor, or before the employees of said defendant attempted to eject him, tendered the conductor in charge of said train either a ticket or money or both in sufficient amount to pay the lawful charge for his transportation on said train from said town of Pacific to the place of his destination, and which was a place where said train was to stop to allow passengers to leave said train, then it became the duty of the conductor to accept said money or ticket from said Powell, and defendant had no right to eject him from his train thereafter, and if you believe from the evidence that said Powell was so ejected and left in a place of danger by defendant on its right of way, and while endeavoring to extricate himself from said place of danger and in the exercise of ordinary care for his own safety was struck and killed' by one of the defendant’s engines and trains, then your verdict will be for the plaintiff on the first count of plaintiff’s fourth amended petition. ’ ’

The instruction for the defendant is the converse of the above given for plaintiff, and told the jury that if the plaintiff’s husband refused either to produce .a ticket entitling him to ride, or to pay his fare upon said train when requested so to do, then the conductor had the right to eject him, using such force as was necessary under all the circumstances, and if he did so, then plaintiff was not entitled to recover on account of said ejection of her husband.

Upon this proposition it will be observed that the instruction as herein indicated presented two issues. First, it submitted the issue as to whether or not Mr. Powell, plaintiff’s husband, boarded defendant’s eastbound train on the evening of the accident with the intention of becoming a passenger thereon. Second, if the jury should find that the relation of passenger and carrier existed, as applicable to plaintiff’s husband, and that Mr. Powell boarded said train with the* intention of becoming a passenger thereon, then the issue is presented to the jury as to whether or not said Powell, before said train had been stopped by said conductor and before the employees of the defendant railway company had attempted to eject him, tendered the conductor in charge of said train either a ticket or money or both in sufficient amount to pay the lawful charge for his transportation on said train from said town of Pacific to the place of his destination. Learned counsel for appellant complains of this instruction and earnestly insists that it does not fairly present the law as applicable to the subjects therein embraced. It is sufficient to say upon the proposition now under discussion that we have substantially indicated in the statement of this cause the nature and character of the testimony upon which the two issues herein referred to, that is, as to whether or not Mr. Powell, plaintiff’s husband, boarded the train with the intention of becoming a passenger, and as to whether or not before the said train was stopped and before the employees attempted to eject Mr. Powell lie tendered his railroad fare to the place of his destination, and in onr opinion there was sufficient evidence on the part of the plaintiff to authorize the submission of this issue to the jury.

In Holt v. Hannibal & St. Joseph Railroad Co., 174 Mo. 524, Division No. 2 of this court reviewed the authorities as applicable to the proposition now under discussion. The submission of the issues as herein-before indicated and the instruction of the court embracing those issues are fully supported by the case last cited. "We deem it unnecessary to burden this opinion with a quotation of the discussion of the legal propositions in that case and the announcement of the principles applicable to them. It is sufficient to say, as herein stated, that it fully supports the conclusions of the trial court that there was sufficient testimony to authorize the submission of the issue to the jury.

n.

The most serious proposition with which we are confronted, as disclosed by the record, is the action of the court in excluding the testimony as offered by the porter and train collector respecting the action and conduct of plaintiff’s husband while being transported upon the train of the defendant from St. Louis to Pacific immediately prior to the occurrence of the accident which is involved in this proceeding.

We have embraced in the statement of this cause the evidence of the porter and the collector which was offered on the part of the defendant to show the conduct and actions of Mr. Powell, plaintiff’s husband, in going from Union Station to Pacific on the evening that the accident occurred and immediately preceding such accident. There is no necessity for reproducing the evidence as offered, but it is sufficient to announce our conclusion as to the admissibility of such evidence. In our opinion the facts which the defendant offered to show by the porter and' the collector upon the train, as fully set forth in the statement of this cause, were clearly competent and should have been admitted upon the trial of this cause. The authorities not only in this State, but as well in other jurisdictions, all recognize the true definition of a passenger, that is, that “a passenger is one who enters the vehicle of a carrier with the intention of paying in money the usual fare for his transportation, or who is supplied with a ticket or pass, entitling him to ride to a given point. ’ ’

One of the issues submitted to the jury by the instruction of the trial court was whether or not Mr. Powell, plaintiff’s husband, boarded the train at Pacific just preceding the accident with the intention of becoming a passenger, or, in other words, with the intention of paying in money the usual fare for his transportation. Embraced in this offer was the fact that Mr. Powell was a constant traveler on the Frisco line to Springfield, Missouri, and .other points beyond Springfield. This being true, presumptively at least, he knew the points at which trains would stop, and that this train did not make any stops until it reached Pacific, and he paid no fare at all to Pacific. He offered the conductor a commutation ticket to Eureka, but the train did not stop at that point, and he was carried, without paying any fare whatever, on account of a train closely following the train upon which he took passage; so closely, that the conductor would not undertake to stop the train in order to let Mr. Powell off. The train leaving Union Station upon which Mr. Powell took passage, left there at 8:21 p. m. It was 36 miles from Union Station to Pacific, and the testimony discloses that Powell boarded the other train from which he was removed at 9:30 p. m. Manifestly he could have only been at Pacific before boarding the train to return but a very short time. In fact, from the time he started from Union Station on the train at 8:21 and returning on the train from which he was removed, was practically one trip, and clearly his conduct and actions upon that trip and upon the first train he boarded at Union Station, for the purpose of throwing light upon his intentions when he boarded the train upon returning, were admissible in evidence and the trial court committed error in excluding it.

The testimony as offered shows that Mr. Powell first stated that he was going to Springfield, Missouri. There can be but one conclusion drawn from this statement that he was going to Springfield, Missouri: that is, that at least he was not acting in good faith with those in charge of the train, for had he frankly stated to the porter that he wanted to get off at Eureka he evidently knew that he would be met with the statement that that train did not stop at Eureka. But emphasizing the want of good faith in boarding the train as a passenger is the fact that he informed the collector after the train was running in going to Pacific, that he wanted to get off at Eureka. It was then that the collector informed him that the train did not stop at Eureka and he was carried to Pacific without paying any fare whatever. In a few minutes after reaching Pacific on that train he boards the train at 9:30 (the train from which he was removed by the conductor), and it seems from the disclosures of the record in this cause that when he got on a train that did stop at Eureka he didn’t want to stop there, but wanted to come on back to Tower Grove. He tendered the conductor a commutation ticket from Eureka to Tower Grove, and the whole controversy between him and the conductor was as to the payment of his fare from Pacific to Eureka. It is quite significant that, if he in good faith wanted to*go to Eureka and boarded the train at Union Station with that purpose in view, when he boarded the train at Pacific which stopped at Eureka, he should have presented the conductor with a commutation ticket from Eureka to Tower Grove and did not suggest to the conductor that he wanted to get off at Eureka, and the whole controversy between Mr. Powell and the conductor was in respect to the payment of his fare between Pacific and Eureka, his commutation ticket being good from Eureka to Tower Grove; it at least seems a little bit singular that if he in good faith was wanting to go to Eureka, after being pressed for his fare, that he should present a commutation ticket from Eureka to Tower Grove, but didn’t say to the conductor that he wanted to get off at Eureka.

The good faith of Mr. Powell in boarding the train of the defendant with the intention of becoming a passenger, was regarded by the trial court as a highly important issue in this cause, and the court submitted that issue to the jury by an appropriate instruction; therefore the actions and conduct of Mr. Powell in riding upon the trains of the defendant on that evening, which had any tendency to shed any light whatever upon his good faith in boarding said trains with the intention of becoming a passenger, were manifestly proper subjects for the consideration of the jury in reaching a correct conclusion upon the issue presented.

In Gates v. Railroad, 125 Mo. App. 336, testimony was offered by defendant and admitted that the plaintiff customarily tried to “beat” his way and had on several occasions severely taxed the patience of the conductors by refusing to pay his fare. Judge Ellison, who wrote the opinion in that case, referred specially to that class of evidence which had been admitted, and condemned an instruction, in view of such evidence, which ignored the intentions and conduct of the plaintiff in boarding the train. That case also verly clearly pointed out the distinguishing features between the ease of Holt v. Hannibal & St. Joseph Ry. Co., 174 Mo. 524, and the case then under consideration:

The rule is firmly established in the jurisprudence of this State, as well as in other jurisdictions, that when the question in issue is one involving intent, evidence of other acts and conduct of a party of kindred character to the one under investigation, in order to illustrate or establish the intent or motive of the particular act directly in judgment before the court, has always been admissible, both in criminal as well as civil cases. [Davis v. Vories, 141 Mo. 234; Manheimer v. Harrington, 20 Mo. App. 297; Van Ravenswaay v. Insurance Co., 89 Mo. App. 73; Dodge v. Knapp, 112 Mo. App. 513.]

The trial court obviously had before it the good faith and intention with which Mr. Powell boarded the train and the court by an appropriate instruction, as before stated, submitted that issue to the jury, and as heretofore stated the evidence of the conduct and actions of Mr. Powell on the evening of this accident was clearly admissible upon the question of his intention of becoming a passenger at the time he boarded defendant’s train. Emphasizing the correctness of the conclusion that this testimony as excluded was admissible, the plaintiff’s counsel, in his cross-examination of the conductor on defendant’s train, clearly recognized that testimony of that character was entirely competent. Learned counsel for respondent sought to introduce evidence supporting the theory that Mr. Powell, plaintiff’s husband, boarded the train with the intention of becoming a passenger, that is, in the cross-examination of the conductor of defendant’s train from which Mr. Powell was removed, counsel for plaintiff made the inquiry which was entirely new matter, as to whether or not Mr. Powell had not prior to this time been a passenger on defendant’s trains and as to whether or not he had paid his fare. As heretofore indicated, this was entirely new matter and was evidence introduced on the part of the plaintiff, and doubtless for the purpose of showing that Mr. Powell had in fact entered the defendant’s train with the intention of becoming a passenger. Plaintiff, by this sort of a cross-examination, clearly opened the door for the admission of the testimony which was offered by the defendant and excluded by the court, and the' respondent is not in position, having introduced testimony as to the prior conduct and actions of Mr. Powell in traveling upon the defendant’s train, to seriously object to the introduction of testimony which shows his conduct and actions immediately preceding this accident.

The issue as to whether or not Mr. Powell, plaintiff’s husband, entered the train of defendant with the intention of becoming a passenger was sharply in dispute before the jury, and the evidence upon that issue was conflicting, and as heretofore stated, the court presented that issue to the jury by an appropriate instruction; therefore, it follows that it was highly important that all of the facts which had any tendency to prove or disprove any of the issues presented in the case be admitted in evidence, and in our opinion this evidence as offered by the defendant as to the acts and conduct of Mr. Powell on the evening of the accident and just preceding the occurrence of the accident, which was excluded, was admissible, and the action of the court in excluding that testimony as offered eonstitues reversible error.

III.

This leads us to the insistence of appellant that even though the removal of Mr. Powell from the train was wrongful, yet such removal was not the proximate cause of his death, and that plaintiff’s husband, Mr. Powell, was guilty of such contributory negligence as to bar plaintiff’s right of recovery.

The briefs of learned counsel both for plaintiff and the defendant, have collated about all the authorities applicable to the proposition stated and now under consideration. It is not out of place to say that all that can be said upon this proposition has been fully stated not only in the oral argument hut as well in the briefs of counsel representing the litigants in this case. We shall not undertake to review the cases cited by the respective counsel in this cause, but simply deem it entirely sufficient to state that the record as to the condition of the sides of the track from the point where Mr. Powell was removed from the train to the point where the accident occurred is very unsatisfactory, and we feel that as the case will necessarily be retried the testimony as to the conditions on each side of the track, embracing the points as heretofore indicated, can be made much more satisfactory, that is, we take it that the nature and character of the slope from the track down to the level of the barrow pits, as well as the testimony of other witnesses who say that there were safe places for Mr. Powell to walk on the sides of the track, can be more definitely and accurately explained than it appears in the present record in this cause; yet under the record as now before us we are unwilling to say that there was not sufficient testimony upon which to submit the issue to the jury as to the proximate cause of the injury which resulted in the death of Mr. Powell, as well as upon the question as to Mr. Powell’s contributory negligence in walking-back, from the point where he was removed, to the station at Pacific. Upon the record before us there are numerous authorities which support the action of the trial court in submitting the issue upon those questions to the jury. [Phillips v. Railroad, 211 Mo. l. c. 442; Estes v. Railroad, 110 Mo. App. 725; Evans v. Railroad, 11 Mo. App. 463; Tilburg v. Railroad, 217 Pa. St. 618; Arnold v. Railroad, 115 Pa. St. 135; Malone v. Railroad, 152 Pa. St. 390; Railroad v. Rosenzweig, 113 Pa. St. 519.]

This sufficiently indicates our views upon the legal propositions as disclosed by the record now before us. We see no necessity for pursuing this subject further and it simply remains for us to announce our conclusion that, for the error in excluding the testimony as offered hy the defendant as to the conduct and' actions of the plaintiff’s husband as heretofore indicated, the judgment in this cause should be reversed and the cause remanded for a new trial, and it is so ordered.

Burgess, Lamm and Graves, JJ., concur; dissenting opinions filed by Gantt and Valliant, JJ., in which Woodson, J., concurs.