St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1888-06-27
PASSENGERS RIGHTS
Upheld by the Supreme Court
Other Cases Settled.

The supreme court yesterday filed a
decision in a railway damage case,
which, while it merely reaffirms points
of law, will serve to impress the fact
! upon railway men that persons who get
upon their trains are entitled to decent
and considerable treatment, even when
| they have no tickets, and are properly
trespaSserS. Some time ago Erick L.
| Mykleby, passenger on the Omaha
| train from Eau Claire to Black River
Falls was forcibly elected from the
! train while it was in motion, and re-
ceived very severe injuries by being
thrown under the wheels. The lower
| court before which the case was
brought dismissed the suit for damages
on the ground that Mykleby was tres
| passer. The supreme court reverses
this order of the lower court, and the
| case will be tried before jury. The
| syllabus is as follows:
E. P. Mykelby. appellant, VS.. The Chi
cago, st. Paul, Minneapolis 81 Mani
toba Railway Company, respondent.
Syllabus-The complaint alleges that
plaintiff was passenger on defendants
train, and that the agents of the defend
ants in charge of the train willfully,
maliciOusly, forcibly and violently, and
rapid rate of speed. kicked
and elected him from the steps
of a car on to the ground and I'M
der the cars. whereby he sustained per-
sOnal injuries, for which he seeks dam
ages. Held, that the cause of action
thus pleaded was one in tort, the grava-
men of the complaint being an intended
and personal assault and battery. The
fact that the evidence showed that
plaintiff was treSpaSSer and not pas
senger on the train-the wrongful as
sault being proved as alleged--consti-
tuted nalther failure of proof nor
material variance between the COM
plant and the evidence. Order re-
YerSed. MITCHELL, j.
Other cases were as follows:
Julia q. Chosen, respondent, VS.. Edwin
Y. Whitney, appellant.
Syllabus-Where sale of real estate
was made by a sheriff under judgment
of court and subsequently confirmed it
will be presumed, nothing affirmatively
appearing to the contrary, that tran
script of the Judgment was delivered to
the sheriff when that is required by
statute. The Judgment directed that
the proceeds of the property sold should
be applied pro rata on the several Judg-
ments of the plaintiffs against the mort
gagOr. One of the plaintiffs bid in part
of the property and received shertf's
certificate and applied the whole amount
OF his bid as payment of his Judgment,
the owners of the other judgment never
having objected. Held that in cOllat-
eral action.in which he was sought to be
charged with this amount as payment
OH his Judgment, he cannot object to
be so charged because it was more than
his pro rata share under the terms of
the Judgment. Also, having received
his certificate of sale and the benefits. of
the payment at the date of the sale, the
amount of his bid should be credited on
his judgment, as of that date. Parol
evidence that he paid no money, but ap-
piled the amount of his BID on the judg-
ment was admissible Notwithstanding
the statement of the sheriff in his report
of sale that he had received the money
and paid it over to the attorney for the
plaintiffs i'll the action. Judgment af-
firmed. MITCHELL, j.
John G. Horrigan, appellant. VS.. Ed
mund Rice. Jr., ct al, respondents.
Syllabus-The covenants in deed only
extend to a title existing in third per-
son which. may defeat the estate granted
by the covenantOr, and not to title al
ready vested in the cOyenantee ,Judg-