Barker v. The St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 22 December 1894
• Citation: 28 S.W. 866,126 Mo. 143
• Parties: Barker v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

28 S.W. 866

126 Mo. 143

Barker v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

December 22, 1894

Appeal from Mississippi Circuit Court. -- Hon. H. C. O'Bryan Judge.

Reversed and remanded.

""H. S. Priest and ""Martin L. Clardy for appellant.

(1) Witness Travis ought to have been allowed to testify to the declarations of the passengers made while the train was at a standstill, to the effect that Barker had just been put off. Such declarations were admissible as part of the ""res gestae. 1 Greenleaf on Evidence, sec. 108. (2) The testimony of Oscar Johnson as to a conversation between himself and the conductor some minutes after Barker had been removed from the train, was clearly inadmissible. Greenleaf, Evidence [Redfield's Ed.], secs. 113, 114; Story on Agency, secs. 134-139; ""McDermott v Railroad, 73 Mo. 516; ""Rogers v. McCune, 19 Mo 558; ""Adams v. Railroad, 74 Mo. 553; ""McDermott v. Railroad, 87 Mo. 285; ""Aldridge v. Furnace Co., 78 Mo. 563; ""Devlin v. Railroad, 87 Mo. 545; ""Bevis v. Railroad, 26 Mo.App. 22. (3) The statement of witness, that he offered to pay the conductor respondent's fare, was inadmissible and ought to have been rejected. ""Perkins v. Railroad, 55 Mo. 201. (4) It was error to refuse to allow appellant to show the extent of witness Wilson's interest in the result of the case. (5) It was error to give instruction number 3. The trite saying of Lord Kenyon "that a man shall not be permitted to blow hot and cold with reference to the same transaction, or insist at different times on the truth of each of two conflicting allegations according to the promptings of his private interest," may be invoked. (6) This was not a case for exemplary damages and instruction number 4, ought not to have been given, but instruction number 10, ought to have been given. (7) The statute authorizes the conductor to put off any passenger who refuses to pay his fare or behaves in an offensive manner near any dwelling house (R. S. 1889, sec. 2581), and instructions number 6 and 12, asked by appellant, ought to have been given. (8) The damages awarded in this case are excessive. The physician who treated respondent says his injuries are not permanent. Indeed, he says as Dr. Grimstead does, that he has entirely recovered.

""Wilson Moore and ""James A. Boone for respondent.

(1) The testimony of the witness Travis was properly excluded because it was hearsay, was no part of the transaction, having taken place after the injuries occurred, not in the presence of any of the parties to the transaction, nor at the place where it occurred, but in another car and purported to be a narrative of something that had passed. It is not claimed that the passenger with whom Travis had the conversation either saw the transaction or had any connection with it, therefore, the declaration or conversation of the passenger is no part of the ""res gestae. 1 Greenleaf on Evidence, secs. 123-124; ""Senn v. Railroad, 108 Mo. 146; ""State v. Walker, 78 Mo. 388; ""Smith v. Railroad, 108 Mo. 250. (2) The statement of the conductor that plaintiff ought to have broken "his darned neck" was competent evidence. It was explanatory of the act in question, part of the ""res gestae; it further shows that the conductor's act was wanton and willful. ""Harriman v. Stowe, 57 Mo. 95; ""Daley v. Railroad, 97 Mo. 172; ""Stein v. Railroad, 31 N.E. 180; 1 Greenleaf on Evidence, sec. 108; ""Hermos v. Railroad, 50 N.W. 584. (3) Instruction number 3, was a correct and proper declaration of law under the pleadings. ""Lemon v. Chanslor, 68 Mo. 351; ""Garth v. Caldwell, 72 Mo. 627; ""Daily v. Houston, 58 Mo. 365; ""Brown v. Railroad, 20 Mo.App. 429. (4) Instruction number 4, was properly given, because the petition charges, and the evidence showed, that the conductor and brakeman wantonly and maliciously and with violence threw respondent off of the train, and it is proved that the appellant continued them in its employ, thereby ratifying their wanton, malicious and cruel act, and, under these circumstances, it is a proper case for exemplary damages. ""Graham v. Railroad, 66 Mo. 538; ""Malec v. Railroad, 57 Mo. 21; ""Newman v. Railroad, 2 Mo.App. 402.

Barclay, J. Gantt, Sherwood and Burgess, JJ., concur. Black, C. J., and Brace and Macfarlane, JJ., dissent.

OPINION

In Banc.

Barclay J. -- This is an action to recover damages for personal injuries sustained by plaintiff by reason of his alleged unlawful ejection from defendant's train.

The defense is that plaintiff was justifiably ejected, and that no unnecessary force was used in putting him off. The defensive allegations were put in issue by plaintiff's reply. The cause then came to trial in due course.

The jury found for plaintiff in the sum of $ 7,500, under instructions which need not be closely examined, since the cause should go back for another reason, and the objectionable features of the old instructions can be removed in event of another trial.

It may be well, however, to mention (before leaving the subject of the instructions) that they were framed so as to authorize the jury to award, not merely compensatory damages for plaintiff's injuries, but also exemplary damages, in the discretion of the jury, if they found that the conductor, and other agents of defendant, acted wantonly and maliciously in ejecting him from the cars.

There was evidence given by plaintiff and defendant, respectively, tending to support their several theories of the case already outlined.

Plaintiff's testimony was to the effect that he was ejected from the rear platform of the last car of one of defendant's passenger trains, by the conductor and brakeman, one dark night, about 10 or 11 o'clock, in September, 1890, without cause, while the train was in motion, and in a dangerous place.

On the other hand, defendant's evidence accounted for the rejection by plaintiff's refusal to pay fare, insulting conduct on his part toward fellow passengers, particularly women; negatived all unnecessary force, and any unlawful act by defendant's agents, and especially denied that he was ejected while the train was in motion.

During plaintiff's case, one of his witnesses was allowed to testify that he (the witness) was in the smoking car when a stop occurred. After that stop, the witness started back to the rear of the train. He met a man on the way who told him of the fact that plaintiff had been ejected. Witness then entered the last car, from the rear end of which plaintiff had been put off, and his testimony then goes on thus:

"I went right in; I rushed in the car and asked Mr. Howe if he put that man off, and he said he did. I asked him to stop and get him; I told him I was afraid he was hurt, and he just remarked that he ought to have broke his darned neck, or damned neck, I couldn't say for certain which it was."

This testimony was objected to as incompetent, irrelevant and calculated to mislead the jury; but the objection was overruled and defendant duly excepted. The court remarked, in making the ruling, "The declarations of Captain Howe are competent."

The witness above quoted testified, on his direct examination, that this conversation with the conductor, Mr. Howe, took place about eight or ten feet from the front door of the rear passenger car; and that the train "had stopped some time before that."

On his cross-examination, he further said, on this point, in answer to a question as to the interval of time between the stopping of the train and his start from the smoking car, that, to the best of his knowledge it was eight or ten minutes.

This statement is thought by some of my learned colleagues to have been intended by the witness to refer to some other "stop" than that at which plaintiff was put off.

At all events, it is clear that the conversation with the conductor was not later than these eight or ten minutes after the ejectment. It may have been earlier; but it was plainly after the fact; after the conductor had finished the act, and had gone to the other end of the car where he met Mr. Johnson, the witness.

The whole evidence does not bring that conversation into any other relation to the act of plaintiff's ejection, than is indicated by the facts given above.

The question then is, was the conversation admissible.

The main ground on which plaintiff seeks to justify its admission is that it formed a part of the res gestae. On that ground my learned brother, Macfarlane, has sustained its admissibility, though, it seems to me, he apparently experiences some difficulty in reaching that result.

In Missouri it is too well settled by precedents to admit of doubt that no such conversation could be given in evidence with the force of an admission by defendant. Price v. Thornton (1846), 10 Mo. 135; Rogers v. McCune (1854), 19 Mo. 557; McDermott v. Railroad (1881), 73 Mo. 516; Adams v. Railroad (1881), 74 Mo. 553; Aldridge's Adm'r v. Midland, etc., Co. (1883), 78 Mo. 559; Devlin v. Railroad (1885), 87 Mo. 545.

The conductor was employed to represent the company in the management and control of its train.

The company was answerable for his actions within the fair scope of that employment. But the company was certainly not bound by any declaration of his motives which did not accompany, or form part of some act or transaction within the apparent line of the service for which he was employed.

But it is needless to again go over the ground which the last group of decisions covers. Under those cases it is plain that, if the conversation between the witness and the conductor in this case has any proper standing as evidence it can not be as an admission, but must be as a part of that essential, or descriptive, matter belonging to the main transaction...