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DAMAGES for Humiliation and Disgrace in Being Compelled to Leave a Railway Freight Train after taking passage thereon may be recovered, though no one was present at the expulsion but the conductor and a brakeman. Knowledge of such expulsion may reach others, and, if so, this is well calculated to humiliate and disgrace the plaintiff. (p. 379.)

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Action to recover damages for being expelled from a railway train. The plaintiff inquired of the station agent at Olathe at what time he could obtain a train for Hillsdale, and was told that he could go on a freight train at a time designated. Not long before the arrival of such train he purchased a ticket of such agent, and entered the train, first telling the brakeman where he wanted to go, and being assured by such brakeman that the train would carry him. The brakeman subsequently took

up his ticket, but, after passing two stations, the conductor appeared and insisted that the train did not carry passengers, and ordered plaintiff to leave the car. The plaintiff obeyed. After leaving the car, the brakeman offered to return the ticket, but the plaintiff refused to accept it. The jury returned a Ferdict for the plaintiff for two hundred and twenty-five dollars and fifty-eight cents, and by their special verdict found he was entitled to fifty-eight cents for expenses, one hundred and seventy-five dollars for exemplary damages, and fifty dollars for humiliation and disgrace.

It appeared that the train boarded by plaintiff was one which the conductor could not stop at Hillsdale without disobeying orders.

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Pratt, Dana & Black, for the plaintiff in error.

J. P. Hindman and Parker & Hamilton, for the defendant in error.

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382 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 on this suggestion, he went to the caboose, and, before getting on, inquired of the company's employé 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 wrong for which a recovery might be had.

This case is clearly distinguishable from Atchison etc. 384 R. R. Co. v. Gants, 38 Kan, 608, 5 Am. St. Rep. 780, 17 Pac. 51, 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 dam

ages therefor.

It is contended, however, that under the circumstances no recovery of exemplary or punitive damages should be allowed. This court has, in Southern Kansas Ry. Co. v. Rice, 38 Kan. 398, 402, 5 Am. St. Rep. 766, 16 Pac. 817, 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. 418, 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 cascs 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, willful oppression or violence. The jury must, therefore, have found some one or more of these elements 385 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.

A Railroad Company is liable in damages for mental suffering to a passenger, apart from injury to his person, caused by his being wrongfully excluded or expelled from its cars: Mabry v, City Electric Ry. Čo., 116 Ga. 624, 42 S. E. 1025, 94 Am. St. Rep. 141, and

cases cited in the cross-reference note thereto. And it is, in a proper case, liable to him for exemplary damages: Illinois Cent. R. R. Co. v. Harris, 81 Miss. 208, 95 Am. St. Rep. 466, 32 South. 309; Norman v. Southern Ry. Co., 65 S. C. 517, 95 Am. St. Rep. 809, 44 S. E. 83; monographic note to Spellman v. Richmond etc. R. R. Co., 28 Am. St. Rep. 881, 882. See, also, Barker v. Ohio River R. R. Co.

, 51 W. Va. 423, 90 Am. St. Rep. 808, 41 S. E. 148. As to the liability of the company for expelling a passenger from its train when he has a ticket to his destination, but the train is not scheduled to stop there, see Illinois Cent. R. R. Co. v. Harris, 81 Miss. 208, 32 South. 309, 95 Am. St. Rep. 466, and cases cited in the cross-reference thereto; St. Louis etc. Ry. Co. v. Harper, 69 Ark. 186, 86 Am. St. Rep. 190, 61 S. W. 911; monographic note to Illinois Cent. R. R. Co. v. O'Keefe, 61 Am. St. Rep. 83.

MENDENHALL V. ATCHISON, TOPEKA AND SANTA

FE RAILWAY COMPANY.

(66 Kan. 438, 71 Pac. 846.) RAILWAY CORPORATIONS-Passenger, who is not.-One who pays a brakeman for the privilege of riding upon a train, and is told to get on the platform of a baggage car and to get off at stopping places for the purpose of keeping out of sight, is not, while riding on such train, a passenger, nor is this rule made in. applicable by the fact that he was only fifteen years of age and did not know he was doing wrong, if it does not appear that he had not ordinary intelligence for his years, or that he lacked capacity to understand the transaction. (p. 381.)

RAILWAY CORPORATIONS—Trespassers on Trains. If ono is on a train, not as a passenger, but as a trespasser, the corporation owes him no duty except to avoid willful and wanton negligence, and therefore is not answerable to him for injuries sustained by his stumbling over a semaphore board which was permitted to remain above the surface of the ground. (pp. 381, 382.)

Nimocks, Swartz & Hess, for the plaintiff in error.
A. A. Hurd and 0. J. Wood, for the defendant in error.

438 MASON, J. The only question presented in this case is whether the district court erred in sustaining a demurrer to the petition. The petition alleged that plaintiff, a boy fifteen years of age, agreed with the 439 brakeman of one of defendant's passenger trains to pay him twenty-five cents to carry him from (reat Bend to Hutchinson; that plaintiff paid the brakeman this amount and the brakeman told him to get upon the platform of the baggage-car, and to get off at the stopping places on the way for the purpose of keeping out of sight; that plaintiff rode upon the car platform as far as Ellinwood, and in getting off the train while it was still in motion, on the opposite side

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from the depot, stumbled over a semaphore board, fell under the train, and received injuries requiring the amputation of both feet. The plaintiff bases his right to recover upon the acts of the brakeman in instructing him to ride on the car platform and to get off at the stopping places for the purpose of keeping out of sight, and upon the negligence of the company in permitting the semaphore board to remain exposed above the surface of the ground.

The demurrer was properly sustained. The plaintiff was not passenger.

It has often been held that one does not become a passenger by the payment of money to the brakeman of a freight train, the collection of fare not being within the real or apparent scope of his authority: McNamara v. Great Northern Ry. Co., 61 Minn, 296, 63 N. W. 726; Janny v. Great Northern Ry. Co., 63 Minn. 380, 65 N. W. 450; Texas etc. Ry. Co. v. Black, 87 Tex. 160, 27 S. W. 118; Atchison etc. R. R. Co. v. Johnson, 3 Okla. 41, 41 Pac. 641; Brevig v. Chicago etc. Ry. Co., 64 Minn. 168, 66 N. W. 401. Whether the rule is the same in the case of the brakeman of a passenger train or not, the plaintiff in this case was not a passenger, because, in the absence of specific allegations to the contrary, it must be presumed that the fact that he was told to ride on the car platform and

keep out of sight informed him, even if he would not otherwise have known it, that he was not received or considered as a passenger by the company or its authorized agents.

His minority does not affect the matter except so far as it is & mark of capacity: Bess v. Atchison etc. Ry. Co., 62 Kan. 299, 62 Pac. 996. A boy of fifteen, having ordinary intelligence for his age, would presumably understand, under the circumstances stated, that the directions given him were unusual and were intended to prevent his discovery by the person in charge of the train. It is true that the petition alleged that the plaintiff did not know that he was doing wrong in making the arrangements referred to with the brakeman, and that he did not know that he was exposing himself to any great danger in following the instructions given him. But it was not alleged that he had not ordinary intelligence for his age, or that he lacked capacity to understand the nature of the transaction, or that he believed that the brakeman took the money in behalf of the company, or that he did not know that the reason he was told to ride on the platform and keep out of sight was in order that the conductor should not see him. As he was not a passenger but a trespasser, the company owed him no duty with regard to

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