Kansas City, Fort Scott & Memphis Railroad v. Little

The opinion of the court was delivered by Cunningham, J. : It is claimed that the railroad company is not liable for any sum whatever, because the plaintiff was riding on a train which, under the rules of the company, was not permitted to stop at Hillsdale, or even carry passengers at all, and that the conductor was required to obey the regulations of the company in running its trains ; that the company has the right to make reasonable rules for the running of its trains and the carrying of passengers; that it is not bound to carry passengers on all trains or to stop at all stations, and that the traveling public [383] must conform to these rules. These claims are without fault, but do not fit the facts of this case. It was shown in the evidence that train No. 27, due in Olathe at 6 : 35 p. m., regularly carried passengers, and it appears from finding 5 that this train on which plaintiff took passage did actually arrive there at about that time. The ticket agent, who was the company’s representative at Olathe at the time for this purpose, told the plaintiff, knowing where he was going, that the train was coming. Acting oh this suggestion, he went to the caboose, and, before getting on, inquired of the company’s employee who appeared to be in charge of it, and who afterward took up plaintiff’s ticket, if “that freight-train would carry him to Hillsdale,” and was informed that it would; that it took the place of No. 27, which was the one that ordinarily carried passengers, and he could go to Hillsdale on it. If all of these representations were untrue, and the train which plaintiff boarded was not, under the rules of the company, scheduled to stop at Hillsdale, there is nothing to show that he had knowledge of such fact. He made all reasonable inquiry of those whom the company had put there to furnish such information to ascertain if he might rightfully enter the train, and acted on the information thus received. He had a right to rely on all of these representations and assurances. They were made by the agents of the company within the scope of their agency, in the execution of their duties, and bound the company. Acting on them, the plaintiff had a right to go upon that train and be carried to the specified destination. To be ejected from the train before this was accomplished was a Avrong for which a recovery might be had. This case is clearly distinguishable from A. T. & S. [384] F. Rld. Co. v. Gants, 38 Kan. 608, 17 Pac. 54, 5 Am. St. Rep. 780, relied on by the plaintiff in error, where it was held probable that the plaintiff did not take “the next train,” as directed by the local agent, or, if he did, opportunity was given him to ascertain the fact that the train upon which he had taken passage did not stop at the station to which he had purchased his ticket, if he had paid attention to the warning of the brakeman to that effect. More than this, it was there held (page 621) : “If a passenger has suffered in his business, or been put to expense by the delay or refusal of the railroad company to carry him as promised by its ticket agent, he would be entitled to ample damages therefor.” It is contended, however, that tinder the circumstances no recovery of exemplary or punitive damages should be allowed. This court has, in S. K. Rly. Co. v. Rice, 38 Kan. 398, 402, 16 Pac. 817, 5 Am. St. Rep. 766, laid down the rule relating to damages for the wrongful expulsion of a passenger from a train, as follows: “If the expulsion be malicious, or through negligence which is gross and wanton, then exemplary damages may be awarded.” In Cady v. Case, 45 Kan. 733, 26 Pac. 448, it was said: “Whenever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive damages.” This case collects and cites a large number of cases decided by this court to the same point. The court instructed the jury that, before they could allow exemplary damages, they must find in the transaction complained of either malice, wantonness, wilful oppression or violence. The jury must, therefore, have found some one or more of these ele [385] meats present, and we think the evidence warranted them in so doing. Besides this, the jury specifically found that the acts of the agents of the company were such as would make it “guilty of gross negligence toward the plaintiff.” The case was, therefore, under the findings and authorities, one for vindictive damages. It is further insisted that damages for humiliation or disgrace should not have been allowed, because, at the time of the expulsion, no one was present but the conductor, brakeman and plaintiff, and, the expulsion being thus private, there was no indignity, insult or injury to plaintiff's feelings, by being publicly expelled. .We are not disposed to go into a consideration of how much of publicity must accompany a wrong, in order to humiliate or disgrace. A rule could hardly be formulated. What would humiliate one would not affect another. In this case, the plaintiff was on his way to Hillsdale to fill an appointment to make a political speech. He was of necessity compelled to notify the public why he was unable to keep the appointment. It is a matter of common knowledge that he has occupied the office of attorney-general of this state, and to have it go out that he had been expelled from a railroad-train was certainly well calculated to humiliate and disgrace him, and was an injury for which damages might be awarded. We find no error in the judgment, and, hence, must affirm the same. All the Justices concurring.