Kellett v. Chicago & Alton Railroad

Hall, J. The plaintiff, by his contract with defendant, was entitled to one continuous passage from East St. Louis to Mt. Leonard. The passage was to be continuous, and not divided into different parts. The contract was an entire contract, and was indivisible. .2 Rorer on Railroads, 971, et oon seq., and the numerous cases cited in note one on page 972; Walker v. Wabash Railroad Co., — Mo. App.-. It was plaintiff’s duty to ascertain the train upon which he could take passage in accordance with the terms of his contract. For any mistake made by the plaintiff, in selecting the train, he could have no remedy against the defendant, unless the mistake was caused by the defendant. Logan v. Railroad, 77 Mo. 679. By the express terms of a condition printed upon the ticket, the plaintiff could take passage only upon trains stopping at Mt. Leonard. The plaintiff, by his own mistake, got upon the wrong train. By the terms ■of his contract, he had no right to ride a mile upon that train. The conductor had the right to eject the plaintiff from the train uMess he paid his fare. But the conductor’ s right to do so was not because of any penalty imposed upon plaintiff for entering the wrong train. For Ms mistake, the plaintiff was subject to no penalty. On .account of that mistake, he lost none of his rights under Ms contract. All those rights he still possessed, and he was still entitled to a passage to Mt. Leonard, in accord.ance with the terms of his contract. By his contract, he was not entitled to passage on the train which he had entered, and he, therefore, had no right to such passage unless he paid the regular fare. Had the conductor ejected the plaintiff from the train when the plaintiff first presented his ticket, a short [367] distance from St. Louis, for the reason that his ticket did not entitle him to a passage npon the train ; or had the plaintiff, upon learning of that fact, paid the fare required by the conductor ; or had the plaintiff, upon learning the mistake made by him, voluntarily left the train, would any one contend that the entirety of the contract had been broken by the plaintiff, or that the plaintiff had thereby lost his right to a passage, under his contract, to Mt. Leonard ? We think not. For, in either case supposed, the plaintiff would not have entered at all upon the passage authorized by the contract. Such was equally the fact in this case at bar. But the plaintiff and defendant had the right to modify their contract. Although the plaintiff had no right, under his contract, to ride on the train which he entered at East St. Louis, he still had the right to ride in such train on his ticket, with the consent of defendant’s conductor, in charge of said train. That conductor ran as far as Rood House, and he had the right to take the plaintiff to Rood House on his ticket. By so doing the conductor did not bind the defendant to carry the plaintiff in that train to Mt. Leonard, or beyond Rood House at all. And, on the other hand, by accepting such passage, the plaintiff did not lose the right to a passage on his ticket to Mt. Leonard, in a train stopping at that station. So far as concerns that right, upon the plaintiff’s arrival at Rood House, it was just what it was when he left St. Louis. The same may be said of "the passage from Rood House to Marshall, with the second conductor. When the plaintiff left the train at Marshall, he did not interrupt a continuous passage from St. Louis to Mt. Leonard. He had never entered upon such passage. He, at St. Louis, entered, and, from there to Marshall, had ridden, in a train which could not stop at Mt. Leonard. And, besides, he cannot be said to have voluntarily left the train at Marshall, because he had to leave the train there or pay his fare to the first station beyond Mount [368] Leonard at which, the train would stop. Logan v. Railroad Co., supra. The plaintiff did not, then, violate his contract by stopping at Marshall and there waiting for the right train, the train which he should have taken at St. Louis. By so doing, he violated no regulation of the defendant, so far as shown by the evidence. The plaintiff, therefore, under his contract, had the right to ride from Marshall to Mt. Leonard on the train which he entered at Marshall. But he had to present to the conductor of that train a ticket showing that his passage had been paid from Marshall to Mt. Leonard. If the ticket presented by plaintiff had been used from Marshall to Mt. Leonard, it was, of course, worthless, and did not entitle plaintiff to a passage. The only question in this case, so far as concerned the plaintiff’s right to recover, was, whether the conductor of the last mentioned train could have told from the face of the ticket, in connection with the facts then within his personal knowledge, that the ticket had not been used from Marshall to Mt. Leonard. The ticket bore date August 24, 1883. The plaintiff testified that the first conductor punched the ticket, but did not say whether or not the second conductor also did so. It was for the jury to say what condition the ticket was in when the conductor received it from the plaintiff. It was for them to say whether one or both of the preceding conductors had punched it. They did not have to believe the statement of the last conductor that the ticket had been twice punched before he received it. And it was, also, for the jury to say whether, taking the ticket as it was when the last conductor received it, he could have told from it, in connection with the facts within his knowledge at the time, that it had not been used from Marshall to Mt. Leonard. By his own knowledge is meant what he knew, and not what plaintiff may have told him, or anything which he, the conductor, might have afterwards learned. [369] íliere was no question of lay-over ticket in the case. The plaintiff did not need a lay-over ticket. This action was brought for the recovery of damages, caused by the wrongful ejection of plaintiff. No recovery can be had for any wrong done to plaintiff by either of the preceding conductors, if such wrong there was. If either of said conductors had taken plaintiff’s ticket from him, that fact would not have entitled plaintiff to ride in the last conductor’s train without a ticket. His ejection, in such case, unless he paid his fare, would have been rightful, and for the ejection he would have had no remedy against the defendant. And so, if either of the preceding conductors had so treated the ticket by punching it, or by other means, as to make it appear therefrom that it had been used from Marshall to Mount Leonard, and the last conductor, from the face of the ticket, and all the facts within his knowledge at the time, could not have known that it had not been so used, the plaintiff was entitled to ride on the ticket, he should have paid his fare, and, for refusing to do so, he was rightfully ejected from the train. Marshall v. Ry. Co., 78 Mo. 616 ; Yorton v. Ry. Co., 54 Wis. 241; Townsend v. Ry. Co., 56 N. Y. 295 ; Shelton v. Ry. Co., 29 Ohio St. 214; McClure v. Ry. Co., 34 Md. 532; 2 Rorer on Railroads, 972. The case was not tried in accordance with the views herein expressed. It may be that no harm was done to defendant by the second instruction given for plaintiff. On a new trial, however, it should not be given. But, in the first instruction given for the plaintiff, the court erred in making the conductor bound at the time of the ejection by all the facts shown in evidence at the time of the trial. As to the measure of damages, the fourth instruc- ■ tion given for plaintiff was erroneous. If the conductor acted in good faith, with no malice toward plaintiff, and [370] used only such force as was necessary to eject him, although the conductor was mistaken as to his duty, the plaintiff was not entitled to vindictive damages. Logan v. Ry. Co., supra. According to plaintiff’s own testimony, no more force than was necessary was used to eject him. There was no evidence that the conductor’s conduct was rude and insolent. Of course, wantonness or recklessness on the part of the conductor, in the ejection of plaintiff, would have been equivalent to bad faith or malice toward plaintiff. The facts in evidence in this case would not have warranted the court in submitting to the jury the question as to whether or not the conductor acted toward the plaintiff with bad faith and malice. The judgment is reversed and the cause is remanded. All concur.