Union Pacific Railway Co. v. Shook

The opinion of the court was delivered by Gilkeson, P. J. : Various errors are assigned by the plaintiff in error, but we need not consider all of them. The determination of the first question presented disposes of this case. Is this an action ex contractu or ex delicto f This must be determined by the pleadings, and we think the allegations thereof demonstrate it to be ex contractu. They clearly show that the plaintiff below intended to and did waive the tort. It is true that there are some expressions used adapted to allegations in an action ex delicto, but, taken as a whole, they, would not be sufficient to sustain an action of that nature. The plaintiff had an undoubted right to waive the tort, and, having done so, he is bound by his election. This being true, what is the measure-of damages ? “ Damages recoverable upon breach of contract are only those which are the direct and proximate result of the wrong complained of.” (Walrath v. Whittekind, 26 Kan. 482.) Under the pleadings and evidence in this case, the plaintiff could only recover such damages as were the direct and proximate result of the breach of the contract declared upon, and would be the price of the [713] ticket, $1.65, and the value of the time lost, $6, and the court should so have instructed the jury. It is the duty of the court to define the elements of damages, and of the jury to assess the amount. This the court failed to do, but on the contrary instructed them that— “if Mr. Shook was expelled from the train at the time and place, without just cause or reason, when he had a ticket, then, gentlemen of the jury, he is entitled to receive such damages as you think proper and just under the circumstances, by reason of the manner in which he was put off, acd what he had to do in order to get to his destination, or the inconvenience and suffering entailed upon him by the wrongful act of the company. If it was wrongful, as an element of damages, you may take into consideration, and assess such damages as you think under the circumstances would be justifiable and right; that is a matter for you to determine under the testimony.” This is erroneous for several reasons. It does not correctly state the rule on the measure of damages. It does not define the elements of the damages, and it made' the jury the sole and exclusive judges of the items for which the plaintiff might recover. Under the special findings in this case, which show the several items of damages claimed and found by the jury, the only judgment which could have been rendered in favor of the plaintiff, at most, is such sum as would cover the value of the ticket and the plaintiff’s loss of time. The judgment of the court below will be modified, and cause remanded, with instructions that the court render judgment for the plaintiff in the sum of $7.65. All the Judges concurring.