Murphy v. St. Louis Transit Co.

• Decision Date: 21 October 1902
• Citation: 70 S.W. 159,96 Mo. App. 272
• Parties: MURPHY v. ST. LOUIS TRANSIT CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Court of Appeals

70 S.W. 159

96 Mo. App. 272

MURPHY v. ST. LOUIS TRANSIT CO.¹

Court of Appeals at St. Louis, Missouri.

October 21, 1902.

PLEADING—WAIVER OF OBJECTION—CARRIERS —DUTY OF EMPLOYÉS—ISSUES SUBMITTED —DAMAGES—EVIDENCE.

1. It is bad pleading to blend two causes of action in a single count of a petition, and the fault should be corrected if timely objection is made; but the objection is not timely if made by motion to elect after an answer has been filed, and a jury sworn to try the issues.

2. It is the duty of a street railway company's employés in charge of a car to treat passengers with respect, and not subject them to insult and violence; and that rule was applicable to this case, under the testimony adduced by the plaintiff, and was properly given in charge to the jury.

3. When the trial court, at the instance of defendant, instructed the jury at the close of plaintiff's case that the plaintiff cannot recover on one cause of action stated in his petition, the defendant cannot complain on appeal that the court afterwards submitted the cause to the jury solely on the other cause of action stated in the petition.

4. The petition prayed for $5,000 damages. The instruction on the measure of damages is complained of because it did not limit the amount the jury might award to that prayed in the petition. Held that, as the jury only awarded $500 damages, this point is without merit.

5. It is not reversible error that the trial court, in an instruction on the measure of damages, directed the jury to award damages for plaintiff's injuries "caused by the wrongful conduct of the defendant as set out in other instructions," when the jury were told in other instructions that they must find the defendant's conduct was wrongful in the respects charged, before they could find a verdict against it.

6. The defense in this case was that whatever injuries plaintiff received were inflicted by the servants of the company in defending themselves against an assault by the plaintiff. An instruction was given by the court which told the jury that, if plaintiff began the assault, he could not recover. Held, that it was not error to refuse an instruction submitting the issue of whether the plaintiff was a trespasser on the car or not, because that was immaterial, as he had no higher right to commit an assault if he was a passenger than he would have had if he was a trespasser.

(Syllabus by the Court.)

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Action by James M. Murphy against the St. Louis Transit Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This instruction was given at the defendant's request: "If the jury find from the evidence that the plaintiff intended to end his journey as a passenger at Sixth street and Washington avenue, and went to the rear platform of the car for the purpose of alighting, and was given reasonable opportunity to alight at that point, but because a controversy arose between the plaintiff and the conductor about the past occurrence of the conductor refusing a transfer to plaintiff, and that the plaintiff remained upon said car for the purpose of continuing the controversy, and that when the car reached Sixth and Locust streets the plaintiff was in the act of alighting, and the conductor put his hand upon the plaintiff, pushed him off, and that thereupon the plaintiff again got upon the car, struck and assaulted the conductor, then the conductor had lawful right to use such force as was reasonably necessary in resisting the plaintiff to prevent injury to himself; and if, while the conductor and plaintiff were engaged in their struggle and scuffle, the motorman came to the rear platform, and the plaintiff struck him or attempted to strike him, then the motorman had the lawful right to use such force as was reasonably necessary to prevent injury to himself in resisting the plaintiff; and if the jury find from the evidence that the alleged assault upon plaintiff occurred substantially under these circumstances, and that neither said conductor nor said motorman used any more force than was reasonably necessary to protect themselves against the plaintiff, then the plaintiff is not entitled to recover for the alleged assaults made upon him." These two were refused: "If the jury find from the evidence that the plaintiff went upon the rear platform of the car, or of the step thereof, for the purpose of alighting therefrom, and that the conductor pushed the plaintiff off the car, and that the plaintiff then got upon the platform of the car, not for the purpose of being further carried as a passenger, but for the purpose of attacking or assaulting the conductor, then the plaintiff became a trespasser in again getting on that car for that purpose, and the defendant's agents in charge of said car had the lawful right to use such force as was reasonably necessary to keep plaintiff off the car or to expel him therefrom, and the defendant is not liable for any damages caused by any assault made upon plaintiff after he was pushed off the car by the conductor, unless they used more force than was necessary in resisting the attack of plaintiff or in trying to keep him off the car; and, in determining whether more force than was necessary was used, the jury should consider all the facts and circumstances in evidence before them." "Even if the jury do find from the evidence that the allegation of the petition, that when the plaintiff was about to alight from the car at Locust street the conductor `put his hands on him to shove him off,' is true, then the plaintiff had no right to use any greater force than was necessary to prevent being shoved off; and if the jury further find from the evidence that the plaintiff struck or struck at the conductor, or in any manner threatened to strike or assault the conductor, and that such assault or threatened assault was not necessary to plaintiff's protection from being shoved off the car, then the conductor had the right to resist such assault, or threatened assault, if it appeared to said conductor, from the acts of the plaintiff, that there was imminent danger that the plaintiff would strike said conductor; and the plaintiff cannot recover for any injuries he may have received by the acts of said conductor in resisting such assault, provided said conductor used no more force than was necessary in resisting plaintiff."

Boyle, Priest & Lehmann, for appellant. Morris & Maginn, for respondent.

GOODE, J. (after stating the facts).

1. Plaintiff's petition states two distinct causes of action in a single count,—one for...