Berger v. Chicago & A. Ry. Co.

• Decision Date: 01 December 1902
• Citation: 71 S.W. 102,97 Mo. App. 127
• Court: Missouri Court of Appeals
• Parties: BERGER v. CHICAGO & A. RY. CO.<SMALL><SUP>*</SUP></SMALL>

71 S.W. 102

97 Mo. App. 127

BERGER v. CHICAGO & A. RY. CO.^*

Court of Appeals at Kansas City, Missouri.

December 1, 1902.

CARRIERS — ASSAULT BY CONDUCTOR — EVIDENCE — SUFFICIENCY — ADMISSIBILITY.

1. In an action against a railroad company for injuries sustained by a passenger as a result of being wantonly pushed from a car by a conductor, evidence examined, and held to support a finding for plaintiff.

2. Where, in an action against a railroad company, a plaintiff testified that she was pushed by the conductor from the platform of a smoking car, in which she had been riding, and the defendant's evidence tended to prove that she had been riding in another car, it was not error to permit plaintiff in rebuttal to introduce evidence that she had not been seen in the other car.

3. In an action against a railroad company the evidence of plaintiff, if true, established the allegations of her petition that the defendant's conductor spoke harshly to her, a passenger, and wantonly pushed her off a car platform onto the ground. Held, that plaintiff was entitled to an instruction as to punitive damages.

4. An instruction including shame and humiliation as an element of damages was proper, though it was not specifically pleaded, nor was any direct testimony on that point given.

5. In an action against a railroad company for injuries sustained by a lady passenger as a result of being wantonly pushed by defendant's conductor from the platform of a car, where no effort was made by plaintiff to impeach the conductor as a witness, evidence offered by the defendant as to the conductor's general character, and his conduct towards lady passengers in particular, was properly excluded.

Appeal from circuit court, Howard county; John A. Hockaday, Judge.

Action by Tillie Berger, by her next friend, against the Chicago & Alton Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

F. Houston and C. C. Madison, for appellant. Sam C. Major and Percival Birch, for respondent.

BROADDUS, J.

This is an action for damages for injury to plaintiff while getting off defendant's train at West Glasgow, Howard county, Mo., on December 28, 1901. The allegations of the petition are that while the plaintiff, who at the time was a passenger on defendant's train, was in the act of getting off said train at said place of injury, she was struck or pushed by the defendant's conductor, which caused her to fall from the platform of the car on which she was standing to the ground, whereby she was seriously injured, two of her ribs being broken and other hurts sustained. She claimed both compensatory and punitive damages. The defendant's answer consists of a general denial, and that defendant's injuries were the result of her own negligence, and not the act of the defendant. The jury found for plaintiff, and gave her $600 compensatory and $500 punitive damages. The appellant's contention is that the plaintiff's story "was so improbable and contradictory in itself, and the weight of evidence so overwhelmingly against it," that she was not entitled to recover anything. There were only four witnesses who saw the accident, viz.: Rosa Berger, who testified for the plaintiff; the conductor, Drake; the porter, Wilson; and J. D. Selmeyer, who testified for the defendant. The plaintiff's evidence was that she, with witness Rosa Berger, her sister-in-law, had got on the train at Glasgow some time in the afternoon of the day hereinbefore named, for the purpose of returning to West Glasgow, a station near where they lived; that, owing to the shortness of the distance between the two stations, defendant's conductor, prior to the occasion in controversy, had insisted that they ride in the smoker, so that it would enable them when they arrived at their destination to get off the train more readily; that on the day in question they took seats in the smoking car, and when they arrived at their destination, as plaintiff was passing from the platform of the smoking car to the next car, at the foot of which stood the porter to assist ladies to alight from the car, the conductor met her, and said in an angry tone, "You get off here," and struck or pushed her, which caused her to fall against the side of the car and to the ground below. Rosa Berger, her sister-in-law, corroborates her in almost every particular. The conductor denies having used harsh or angry words, denies having either struck or pushed her, and states that plaintiff and her sister-in-law were not in the smoking car, but were in the chair car, and that when she came out of the car he was on the platform of the smoker, and as plaintiff, who was on the platform of the ladies' car at the time, was about to pass him, he put his hand on her shoulder, and said to her, "No, step down these steps;" that he said and did this in order to have her go down by the porter, who was standing on the ground at the steps to which he directed her, so that he could assist her in getting off the train; that she got off safely, but after she got off she seemed to have slipped and fallen on her hands and knees and left side, as the porter had hold of her right arm, and the porter helped her up, and asked if she was hurt, she answering that she was not. On cross-examination he was asked if when plaintiff fell her body touched the ground, to which he answered: "No, sir, it didn't; for the porter had hold of her right arm, and that kept her from falling to the ground." The porter Wilson testified that plaintiff and her sister-in-law were not in the smoking car, but in the chair car; that the plaintiff, who was the last to get off the train, fell as she stepped to the ground off...