Barree v. City of Cape Girardeau

• Decision Date: 23 June 1908
• Citation: 132 Mo. App. 182,112 S.W. 724
• Parties: BARREE v. CITY OF CAPE GIRARDEAU.
• Court: Missouri Court of Appeals

112 S.W. 724

132 Mo. App. 182

BARREE v. CITY OF CAPE GIRARDEAU.

St. Louis Court of Appeals. Missouri.

June 23, 1908.

1. MUNICIPAL CORPORATIONS — LIABILITIES FOR INJURIES INFLICTED BY SERVANTS.

A municipal corporation is not liable for an injury inflicted by a servant while exercising a corporate franchise conferred on the municipality for the public good, but is liable for injury inflicted by its servant while exercising a power conferred on the municipality for its private benefit.

2. SAME.

A municipal corporation is liable for a wrongful act committed by its street commissioner while performing his duties in improving a street; the work being a ministerial function, and relating to corporate interests only.

3. TRIAL—EVIDENCE—INSTRUCTIONS.

Where, in an action against a city for an assault committed by an employé holding the positions of street commissioner and police officer, the evidence did not show that the occasion authorized the exercise of the powers of a policeman, an instruction that, if plaintiff was arrested by the employé when he was acting as policeman, there could be no recovery, though plaintiff received permanent injuries, was properly refused, because of the want of evidence on which to predicate it.

4. SAME—INSTRUCTIONS—PROVINCE OF JURY—QUESTIONS OF LAW.

In an action against a city for an assault committed by defendant's street commissioner who was resurfacing a street, the defense being that plaintiff, a street car driver, was unlawfully removing gravel from the tracks, a requested

charge to find for defendant if the jury should find that plaintiff was himself engaged in an unlawful act, and that his injury was the direct result thereof, was properly refused, as submitting to the jury the legal status of plaintiff's act in removing the gravel.

5. DAMAGES—PERSONAL INJURIES—EXTENT OF INJURIES—QUESTION FOR JURY.

Where the evidence on the issue of the extent of a personal injury is conflicting, the question of its extent is for the jury.

6. SAME — AMOUNT OF DAMAGES — QUESTION FOR JURY.

The compensation to be awarded in a personal injury action is peculiarly within the province of the jury in the trial court.

7. APPEAL AND ERROR—REVIEW — EXCESSIVE DAMAGES.

In determining whether the verdict in a personal injury action is excessive, the evidence most favorable to plaintiff should be given its full probative force, and, when that is done, if it clearly appears that the verdict is excessive, the appellate court may set it aside on the ground that the jury was influenced by passion or misapprehended the instructions.

8. DAMAGES—PERSONAL INJURY — ASSAULT— EXCESSIVE DAMAGES.

Where, in an action for injuries to a person 60 years old, the evidence showed that the injuries, not only caused a permanent and almost total loss of the use of plaintiff's left arm, but that it was the source of almost constant pain and suffering, a verdict for $4,500 was not excessive.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Elijah Barree against the city of Cape Girardeau. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 197 Mo. 382, 95 S. W. 330, 6 L. R. A. (N. S.) 1090, 114 Am. St. Rep. 763.

In the summer of 1902 plaintiff was rightfully operating a street railway by horse power over Spanish street, in the city of Cape Girardeau. Its street commissioner, Fritz Brunke, by order of the city council, in August of that year was engaged in improving Spanish street outside of the street railway track by hauling creek gravel and spreading it on the street outside of and up to the rails of the street railway. On August 21st plaintiff was operating a car on the street, carrying passengers and doing his own driving. His evidence tends to show that in dumping gravel on the street it was permitted to cover the rails in places to such depth as to make it dangerous to drive his car over it; that he had a shovel and broom on the car, and, when he came to a point where the rails were covered with gravel, he would stop his car, take his shovel and broom, and clear the rails of the gravel, and then proceed. The street commissioner, Brunke, objected to plaintiff removing the gravel from where he had placed it, and warned him two or three times not to disturb the gravel. About 10 o'clock a. m., and when plaintiff was making his third or fourth round with his car, he came to where one or two loads of gravel had been dumped, covering one of his rails. He stopped his car, took his shovel, and was removing the gravel from the rail, when Brunke, according to plaintiff's evidence, came up in an angry mood, with a shovel in his hand which he drew on plaintiff, and said to him: "I have told you all I am going to tell you about shoving the gravel off. I will arrest you, and take you and put you in jail." He then struck at plaintiff with the shovel. Plaintiff warded off the blow with his shovel. Brunke caught plaintiff's shovel, wrenched it from him, struck him in the face with his fist, and then took hold of plaintiff's arm, and tore his shirt off him, and started to lead him to jail. As they passed the car, plaintiff caught hold of the handle bar, and protested against being dragged from his car, on which there were three passengers. Brunke was unable to break plaintiff's hold on the car, and called one of his employés to his aid, and the two, by lurching and jerking, broke plaintiff's hold, and marched him off to the jail. Friends of plaintiff interceded, and he was permitted to give a recognizance for his appearance before the police court, and then go his way. Plaintiff was not required to appear in the police court; the matter having been dropped before the day he was to appear. In regard to the injury, plaintiff's evidence tends to show that the muscles of his left arm were torn loose from their moorings, and have become atrophied, causing a partial loss of the use of the arm. The evidence further shows the injury has caused, and will continue to cause, him a great deal of pain and suffering. Defendant's evidence tends to show that in repairing the street Brunke, when gravel would be unloaded on it, would send his son, a boy, to clear the track of any gravel that might lodge on it; that plaintiff had on several occasions before the difficulty thrown the gravel from about the rails into the gutter and under the sidewalks, and that at the time of the difficulty he was shoveling the gravel from the outside of the rail and throwing it into the gutter; that he resisted arrest, and no more force was used than was necessary to arrest him and conduct him to the jail. Brunke testified he did not strike at plaintiff with his shovel or raise it to strike him, but threw it down, that plaintiff came at him with his shovel drawn, and that he grasped it and wrenched it from his hands. Ordinances of the city were offered which showed that Brunke was regularly appointed street commissioner and also special policeman, and occupied this dual capacity at the time of the difficulty, and he testified that he made the arrest as a policeman. The action is to recover damages laid at $10,000 caused by the assault made upon plaintiff by Brunke. The petition charges that Brunke was the agent and servant of the defendant city, engaged in repairing Spanish street at the time the assault was made. A demurrer to the petition was sustained by the trial court, and the case was appealed to the Supreme Court. That court held the petition stated a cause of action, and reversed the judgment and remanded the cause. The trial resulted in a verdict for plaintiff and his damages were assessed at $5,000. Plaintiff remitted $500 of the damages and judgment was rendered in his favor for...