Percy v. Metropolitan Street Railway Co.

Smith, P. J. This is an action ‘ by plaintiff to recover of defendant, an incorporated street railway company, damages for the wrongful ejection from one of its trains by the conductor thereof. There was a trial in the circuit court, resulting in a judgment for plaintiff, from which defendant has appealed. The case appears, from the record before us, to be something like this: The defendant, at the time of [78] the injury complained of, was operating what is known as the Fifth street line, running from Kansas City, in the state of Kansas, to Market Square of Kansas City, in this state. It also operated another line, known as the Eighteenth street line, running north on Main street to Third, and south on Delaware from Third, crossing the Fifth street line at the intersection of Fifth and Delaware streets, where there was stationed a transfer agent, whose duty it was to give transfer checks to passengers, leaving one line to take passage on the other. Plaintiff, at some point on defendant’s Fifth street line, took passage on one of its trains and, on arriving at Fifth and Delaware streets, left the .same and obtained from the defendant’s agent stationed there a transfer check, which on its face provided that “this check will be received only from passengers getting on Eighteenth street line at corner of Fifth and Delaware streets. ” The cable on the last named line had temporarily stopped from some cause, and so plaintiff walked south three blocks, to Seventh and Delaware streets, where there was a train standing, which, had the cable been in motion, would not have been one on which he could have taken passage, because it had passed Fifth street before plaintiff reached there. The. plaintiff entered this train, and almost immediately thereafter it started. He tendered the transfer ticket to the conductor in payment of his fare, which was refused. The conductor insisted to plaintiff that he could not ride on this ticket, because he did not enter the train at the corner of Fifth and Delaware streets. The conductor further told plaintiff that he must either pay his fare or leave the train. The plaintiff then told the conductor that he considered the ticket good and that he would not pay another fare, and that, if he wanted him to leave the train, he would have to put him off. The conductor then ejected the plaintiff from the car, using no [79] more force than was necessary for that purpose. The ejection was not accomplished - under such circumstances as indicated malice or wantonness. The question is, whether, on this state of facts, the plaintiff is entitled to recover. The defendant offered to prove by the defendant’s general manager, who had been introduced as a witness by-plaintiff, that the only way defendant could protect itself in the operation of its several lines of railway against fraud and imposition was to require that the passenger receiving a transfer ticket should get on the other line at the point of transfer. This offer was rejected, on the ground that the defendant had not -pleaded the ‘rule or regulation which it was offered to prove. If plaintiff accepted, as it appears he did, the transfer ticket plainly telling him that he was required to enter the train of the Eighteenth street line at the corner of Fifth and Delaware streets, he was not entitled to take a car on that line at another and different point. By accepting such transfer he so far consented to the regulations of the defendant in respect to the place designated for entering the cars of the line on which the ticket entitled him to ride. Pine v. Railroad, 52 N. W. Rep. 392. If there had been any question as to the reasonableness -of the regulation, it would have been error to have rejected the defendant’s offer. Woods v. Railroad, 48 Mo. App. 125. Evidence of the existence of the regulations under which plaintiff accepted the transfer ticket would have tended to disprove plaintiff’s entire cause of action, which was for his wrongful- ejection from defendant’s train. It would tend to show that the transfer ticket on which plaintiff based his right to ride on defendant’s train conferred no such right under the peculiar circumstances of the case. Evidence tending to establish such regulation or its reasonableness is admissible in such case without being [80] specially pleaded. Logan v. Railroad, 77 Mo. 663; Alcorn v. Railroad, 108 Mo. 81; Woods v. Railroad, 48 Mo. App. 125. And to admit such evidence is not violative of the rule declared in Northrup v. Ins. Co., 47 Mo. 435, and the cases that have followed it, for the very obvious reason that such evidence tends to establish facts which are included within the allegations necessary to the slxpport of the plaintiff’s case. We think that it is now fairly well settled that a regulation requiring a transfer check is not unreasonable, and that a passenger must comply with the conditions thereof to entitle him to passage. And this is so when the charter of a railway company provides fox-passage over two lines for one fai-e. We caxx discover nothing unreasonable in the requirement of the defendant’s regulation printed on the face of the transfer ticket itself. It was clearly the duty of the conductor when the plaintiff entered defendant’s train at a point other than that of transfer not to receive the ticket and to require the payfnent of five cents fare, and if the plaintiff failed to make such payment, as he did, then the defendant can not be held liable fox- putting plaintiff off the train without physical hurt or damage. It inevitably must follow from this that the cireuit court erred in refusing to instruct the jury in effect that the plaintiff was not entitled to recover, axxd that the judgment must be reversed. All concur.