Lampe v. United Railways Company of St. Louis

Decision Date30 July 1920
Citation232 S.W. 249,209 Mo.App. 357
PartiesGEORGE LAMPE, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
CourtMissouri Court of Appeals

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

AFFIRMED.

Judgment affirmed.

T. E Francis and Chauncey H. Clark for appellant.

(1) The court erred in giving plaintiff's Instruction No. 2 for the reason it narrowed the issues, in that plaintiff's petition counted upon the theory that defendant's duty to plaintiff was created by a contract between plaintiff and defendant to carry plaintiff as a passenger, and that this duty was violated by the act of the conductor in striking at plaintiff with a metal conductor's punch while plaintiff was in a position of danger on a rapidly moving car, whereby plaintiff was caused to fall to the street, thereby sustaining personal injuries, whereas this instruction permitted a recovery without requiring a finding of a contract of carriage, and, hence, without requiring a finding that the alleged duty existed. Garrett v. St. Louis Transit Co., 219 Mo. 65; Raming v. Railway Co., 157 Mo. 477; Degonia v. Railroad, 224 Mo. 564; Scrivner v. Railroad, 260 Mo. 421; Wojtylak v Coal Co., 188 Mo. 260; Hall v. Coal Co., 260 Mo. 351; Banks v. K. C. Rys. Co., 217 S.W. 488; (2) The error in plaintiff's instruction No. 2, set out in Point I, is not cured by the other instruction for the reason that it purports to cover the entire case, and direct a verdict for the plaintiff on the facts therein hypothesized and is also directly in conflict with instruction No. 1. Pearson v. Lafferty, 193 S.W. 40; Walker v. White, 192 Mo.App. 13; Hall v. Coal Co., 260 Mo. 351; Chitty v. Railroad, 148 Mo. 64; Moyes v. Railroad, 186 S.W. 1027. (3) The court erred in refusing to give the jury instruction A requested by defendant, which is as follows: "The court instructs the jury that if you believe from the evidence plaintiff had no intention of paying his fare, but was stealing a ride on the car, then he is not entitled to recover and your verdict will be for defendant." This instruction merely submitted facts which, if true, negative plaintiff's case. "The respective rights and duties of passenger and carrier are so radically different from those of a trespasser and assaulter that the evidence establishing the one would be a total variance from the other; and, if, as before suggested, Garrett (plaintiff) was a trespasser and not a passenger upon the car at the time in question, then appellant (plaintiff) totally failed to make out her (his) case, and she (he) was not entitled to recover, as stated in said instruction Number 8 (A)." Garrett v. Transit Co., 219 Mo. 65; Raming v. Railway Co., 157 Mo. 477; Gilkey v. Sovereign Camp of Woodmen of the World, 178 S.W. 875; Johnston v. Grayson, 230 Mo. 380; Buchholz v. Insurance Co., 177 Mo.App. 683; McCorskey v. Murray, 142 Mo.App. 133; Northern v. United Railways Co., 176 S.W. 227; Gannon v. Laclede Gas Light Co., 145 Mo. 502; Tawney v. United Railways Co., 262 Mo. 602; Banks v. Kansas City Rys. Co., 217 S.W. 488. (4) The court erred, for the reasons set out under the last preceding point, in refusing to give the jury instruction B requested by defendant, which is as follows: "The court instructs the jury that although you may believe from the evidence plaintiff fell from the car and was injured, yet the court instructs you that he is not entitled to recover, if you find from the evidence that he had no intention of paying his fare, but even if you find he intended to pay his fare, still he is not entitled to recover if you find from the evidence the conductor did not strike at him." Garrett v. Transit Co., 219 Mo. 65 Raming v. Railway Co., 157 Mo. 477; Gilkey v. Sovereign Camp of Woodmen of the World, 178 S.W. 875; Johnson v. Grayson, 230 Mo. 380; Buchholz v. Insurance Co., 177 Mo.App. 683; McCroskey v. Murray, 142 Mo.App. 133; Northern v. United Railways Co., 176 S.W. 227; Gannon v. Laclede Gas Light Co., 145 Mo. 502; Tawney v. U. R. Co., 262 Mo. 602; Banks v. K. C. Rys. Co., 217 S.W. 488.

Earl M. Pirkey for respondent.

(1) The appellate court takes judicial notice of a former appeal and of the record thereof, State ex rel. St. Joseph Water Company v. Eastin, et al., 192 S.W. 1010; Keaton v. Jorndt, 259 Mo. 189. (2) For an unprovoked assault, or for unnecessary violence, used by the conductor upon a person on a street car, the street car cmpany is liable, regardless of whether the person was a passenger or a trespasser. Whitaker v. Railroad, 252 Mo. 458; Farber v. Mo. P. R. Co., 139 Mo. 272; Gates v. Q. O. & K. C. R. Co., 125 Mo.App. 342; Randall v. C. R. & P. Ry. Co., 102 App. 351; Hoehl v. Wabash R. Co., 119 Mo. 325. (3) If plaintiff proves sufficient facts to make a case and these facts are stated in the petition he is entitled to recover on these facts although he does not prove everything alleged in the petition. Campbell v. The Mo. P. R. Co., 121 Mo. 348; Hartpence v. Rogers, 143 Mo. 632; Taylor v. St. Louis Merchants' Bridge Ter. R. Co., 207 Mo. 501; State ex rel v. Chicago & Alton R. R. Co., 265 Mo. 700; Radcliffe v. St. Louis, I. M. & S. R. Co., 90 Mo. 127; Hubbard v. Wabash R. Co., 193 S.W. 585. (4) In an action based upon an assault by the conductor, it is unnecessary to allege that the person assaulted was a passenger; such allegation is surplusage. Adams v. St. L. & S. F. R. Co., 149 Mo.App. 283. (5) To entitle appellant in a civil case to a review of the trial court's action in granting or refusing an instruction, the motion for a new trial must specifically identify the instruction. A general assignment that the court erred in giving or refusing instructions is insufficient. State v. Selleck, 199 S.W. 131.

OPINION

PER CURIAM

This is an action for personal injuries alleged to have been sustained by plaintiff by reason of the wrongful act of one of defendant's conductors in striking at plaintiff with a "metal punch" while plaintiff was riding in a position of danger at the rear of a rapidly moving street car operated by defendant, whereby plaintiff was caused to fall to the street, sustaining injuries. The trial below resulted in a verdict in plaintiff's favor for $ 1000 actual damages and $ 750 punitive damages. The trial court required plaintiff to remit $ 500 of the amount assessed as actual damages, and, upon such remittitur being made, judgment was entered for plaintiff in the total sum of $ 1250. From this judgment the defendant prosecutes the appeal now before us.

This is not the first appearance of the case in this court. On the first appeal a judgment for the defendant was reversed, for reasons which will appear in the opinion, and the cause remanded for a new trial. [See Lampe v. United Rys. Co., 177 Mo.App. 652, 160 S.W. 899.] A retrial resulted in the judgment first mentioned above, and which is now before us for review. On this last appeal we have previously handed down an opinion (see Lampe v. United Railways Co., 202 S.W. 438), in which, following the ruling of Division No. 2 of the Supreme Court in Kansas City Disinfecting & Mfg. Co., v. Bates County, 201 S.W. 92, we held that the assignments in the motion for a new trial were insufficient to permit a review of the rulings of the court below upon the instructions given and refused. Thereafter the Supreme Court, upon certiorari, quashed the judgment of this court in the cause, holding that the decision of the Supreme Court in Wampler v. Railroad, 269 Mo. 464, 190 S.W. 908, a decision en Banc prior to that in the Kansas City Disinfecting & Mfg. Co. case, was controlling upon us; and that the opinion in the last-mentioned case, in Division No. 2 of that court, though citing the Wampler case as authority for the ruling therein, was not in harmony therewith. [See State ex rel. United Rys. Co. v. Reynolds, et al., 278 Mo. 554, 213 S.W. 782.]

Since the said decision of the Supreme Court in the case on certiorari, the cause has been reargued and resubmitted for our determination.

The petition, after making certain formal allegations, proceeds as follows:

"That on October 6, 1909, plaintiff was at the south crossing of Broadway and Montgomery streets, two streets in said city of St. Louis, intending to become a passenger upon defendant's southbound car then approaching said Montgomery street from the north on tracks of defendant's street railway line on said Broadway;

"That while plaintiff was so at said crossing, said car stopped at said crossing for the purpose of receiving passengers and while it was so stopped plaintiff, for the purpose of being carried as a passenger on said car from said Montgomery street to the business part of said city of St. Louis south of Franklin avenue in said city, stepped on the step of the rear platform of said car and an iron bar of said car located at its rear, and said car shortly thereafter was caused by defendant to proceed southward on said tracks on said Broadway with plaintiff standing on said step and said bar;

"That plaintiff while on said car stood on said step and bar and he so stood because the platforms and inside of said car were filled with passengers, and plaintiff at all times while so on said car was ready, able, willing and intending to pay his fare to defendant for riding on said car and was waiting for an opportunity to pay defendant his said fare;

"That said car was not a car commonly known as a 'pay as you enter car' but was a car on which defendant's conductor in charge thereof usually and habitually proceeded from passenger to passenger to collect their fares;

"That at the time plaintiff was injured as hereinafter mentioned and for a long space of time next prior thereto defendant usually and habitually, when the platforms...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT