Book v. Chicago, Burlington & Quincy Railway Co.

ELLISON, J.

— This case was before us on another appeal and will be found reported in 75 Mo. App. 604 . It will be seen from that report that 'the trial court struck out a portion of plaintiff’s petition and then gave a declaration that plaintiff was not entitled to recover for being wrongfully ejected from the train. The case was reversed and remanded. At the trial had after the cause was returned to the circuit court plaintiff recovered substantial damages and defendant again appealed.

There was evidence tending to prove that plaintiff was a passenger on defendant’s train destined for the town of Eortescue, to which place he paid his fare. That the train did not stop there, but carried him beyond a distance of about three-fourths of a mile and across a small river, when it was stopped, the conductor directing him to get off there. The place was not near any dwelling. Plaintiff objected to getting off and requested that he be taken back to the station or carried further on, some four or five miles, to the next station. The conductor refused to do either unless plaintiff Avould pay additional fare. This, plaintiff refused to do, and still refusing to leave the train, the conductor took hold of him in such violent manner as to injure him and partially carried him to the platform and threw him off doAvn the car steps onto the ground, fracturing two of his ribs and at the same time saying: “D — n you, I Avill learn you to pay the fare when you ride on the train.”

We have not discovered any reason why what we said on the former appeal should not be adhered to. Plaintiff was rightfully on that train. He was carried beyond his station through no fault of his and when the train was stopped his proposition to the conductor was certainly reasonable. Defendant’s theory is that plaintiff should have gotten off the car and sued on his contract of carriage *79 merely for the damage (perhaps nominal) for being carried by. We consider snch theory wholly unreasonable. If such is the rule it could be applied to a woman 'or child in the night time or in a storm. It is a singular idea that a carrier can wrongfully carry a passenger beyond his destination and then be allowed to choose arbitrarily the time and place where, between stations, he shall quit the train. .The least regard for the rights of plaintiff; the least recognition of regret for the wrong which had been put upon him would have suggested to the conductor- to carry him to the next station. But instead of that he, being wholly innocent of any wrong, error or mistake, is subjected to humiliating and brutal treatment.

There is a class of cases where a pas’senger who gets upon the wrong train, or has not been sold the proper ticket by the carrier’s agent, or has been otherwise misled or misdirected, may be required to leave the train. Even then, it ought -to be at some reasonably proper place. But this is not such a case. If the evidence for plaintiff is to be believed and, since the verdict, we must accept it as true, defendant ought not to complain of the result. The judgment is affirmed.

Smith, P. J., concurs; Gill, J., absent.