102 S.W. 661 (Mo.App. 1907), Mitchell v. United Railways Company
|Citation:||102 S.W. 661, 125 Mo.App. 1|
|Opinion Judge:||BLAND, P. J.|
|Party Name:||MITCHELL, Respondent, v. UNITED RAILWAYS COMPANY, Appellant|
|Attorney:||Glendy B. Arnold for appellant; Boyle & Priest and George W. Easley of counsel. O. J. Mudd for respondent.|
|Case Date:||May 14, 1907|
|Court:||Court of Appeals of Missouri|
[Copyrighted Material Omitted]
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds, Judge.
REVERSED AND REMANDED.
STATEMENT.--On December 16, 1904, plaintiff was a passenger on one of defendant's cars traveling north on Broadway, in the city of St. Louis. He got into an altercation with a conductor on the car, by whom he was assaulted. The action is to recover compensatory and punitive damages for the assault. The answer was a general denial.
It appears there were two conductors on the car, one a new man whom the other was "breaking in." The new man was collecting fares and the other was attending to the bell, giving signals to start and stop the car. Plaintiff did not know there was more than one conductor on the car and supposed there was but one. He took a seat near the front end of the car and when the conductor came around collecting fares, plaintiff testified he handed him a twenty-five cent piece (the fare was five cents), and the conductor undertook to hand him two dimes in change by dropping them into his hand. One of the dimes fell on the floor; the conductor looked for it, and then went to back end of the car. Plaintiff testified he looked for the dime but could not find it. In a short time the other conductor came through the car. Supposing him to be the one who collected his fare plaintiff stopped him, and testified to the following conversation: "I said: 'Look-a-here, my friend, you owe me a dime,' He says, 'Owe you a dime? For what?' Said I: 'Didn't I give you a quarter and you gave me back twenty cents?' He said, 'No, you didn't pay your fare.' Said I: 'What do you say?' He says, 'You didn't pay your fare.' Said I: 'If you say so again, you lie.' That is what I said, plain English. And with that he hauled off and struck me a violent blow in the right eye. . . After he struck me I got up and tried to defend myself. I pushed him across the car and he pushed me back in the seat that I came from, and by that time we got pretty nigh--I should judge pretty near to Salisbury street." Plaintiff had his eye dressed at a nearby dispensary. He testified that his eye hurt him and he could not see out of it, and the evidence shows it was badly swollen and was black for two or three weeks. Plaintiff was seventy-six years old but was able, as he stated, to push the conductor down between two seats with force sufficient to break the glass out of the adjoining window. The following appears in plaintiff's cross-examination:
"Q. Now, isn't it a fact that this conductor said to you, 'I didn't collect your fare?' A. No, sir. If he had it would have settled it right there, but he never give me no chance.
"Q. Didn't he tell you that he didn't collect your fare? A. No, sir; he did not. If he had, it would have been settled right there. He never give me any chance to tell whether it was him or the other conductor. There were two conductors on the car. I never knew there were two. That is where they got it confounded right there. . . .
"Q. You don't know whether it was the new man or the old man? A. Or the old man, no, sir. I didn't know them and didn't know there were two on the car.
"Q. You didn't know there were two on the car at that time? A. If they had told me that, the thing would have been settled, there would have been no trouble.
"Q. Now, isn't it a fact that the conductor you demanded the change of told you he didn't collect the fare from you? A. There was one of them told me he didn't collect fare from me.
"Q. And when he said that didn't you tell him he was a 'God damn liar?' A. No, sir; I didn't call nobody a 'God damn liar.' I said, 'If you say that again you are a liar.' That's what I said.
"Q. Well, didn't you say, 'If you say you didn't collect my fare, you are a God damn liar?' A. No, sir.
"Q. Now, you were arguing there about that fare for quite awhile, weren't you? A. About what fare?
"Q. You and the regular conductor with the uniform on? A. Arguing about the fare?
"Q. About the change? A. You mean the dime that was lost on the floor.
"Q. Yes, I say you had quite a little argument about that before you got into the fight? A. I said, 'My friend you owe me a dime.' He says, 'For what?' I says, 'Didn't I give you a quarter and you give me back twenty cents?' He says, 'No, you didn't,' in a kind of slurring manner. He says, 'You didn't pay me no fare.' I said, 'If you say so again you lie.' That's all there is about it.
"Q. Now, that conductor was right, wasn't he? A. I don't know whether he was right or not. He wasn't right in striking me.
"Q. You didn't know whether he was right or not but still you called him a 'God damn liar?' A. I didn't say that. I never said that."
George Hank, the conductor who collected plaintiff's fare, in respect to making the change, said: "I just took the two dimes out of my changer and reached down and laid them in his hand, and one of them dropped down and I reached down and picked it up and gave it back to him, and before I could get away he dropped another one. I had several fares to collect back in the car and I went right on about my business." Witness gave the following version of the difficulty: "The conductor went out on the front end to tell the motorman to stop at Salisbury street until we could get a bucket of fuel, and as he came back in, why the gentleman over there took hold of him somewhere by his coat and says, 'You owe me a dime;' and the conductor says, 'I didn't collect your fare. I don't owe you any dime, he says, 'You owe me a dime,' The conductor says, 'I didn't collect your fare.' He says, 'You are a God damn liar.'...
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