O'Brien v. St. Louis Transit Company

• Decision Date: 22 December 1904
• Citation: 84 S.W. 939,185 Mo. 263
• Parties: O'BRIEN v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

84 S.W. 939

185 Mo. 263

O'BRIEN v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, First Division

December 22, 1904

Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.

Affirmed.

Boyle Priest & Lehmann and George W. Easley for appellant.

The conductor at the time of the shooting was not engaged in the performance of any duty for the defendant. The scuffle during which the pistol was discharged grew out of the personal quarrel between the plaintiff's husband and the conductor, in which the conductor was acting on his individual responsibility, and not within the scope of his agency for defendant, and the defendant is not liable therefor. Lynch v. Railroad, 10 Am. Neg. Rep. 257. Even had the conductor expelled the deceased from the car yet if deceased was shot in a mutual combat ensuing from such expulsion, the railroad company is not liable for the consequence of such shooting. Peavy v. Railroad, 81 Ga. 485; Railroad v. Randolph, 65 Ill.App. 208. Even if the conductor pursued the deceased to the sidewalk and there shot him, the defendant would not be liable, because he was not engaged at that time in or about the business of the defendant. Gilliam v. Railroad, 70 Ala. 268. Where a person who has paid his fare on a street car to his destination, gets off when the car is switched into the car house before reaching his destination, and while standing in the street with one foot resting on the step of the car, engages in an altercation with the conductor over the fact that the car did not run through, and that he was not informed that it would be switched, and on that account is assaulted by the conductor, he can not recover from the company, the conductor's act not having been within the scope of his employment. McGilvray v. Railroad, 41 N.E. 116; Dolan v. Hubinger, 6 Am. Neg. Rep. 506. This is undoubtedly the rule in Missouri. Parker v. Railroad, 32 Mo.App. 381; Parker v. Railroad, 116 Mo. 81; McPeak v. Railroad, 128 Mo. 643; Raming v. Railroad, 157 Mo. 309; Kneeger v. Railroad, 84 Mo.App. 366; Railroad v. Anderson, 17 S.W. 1039. When the plaintiff's husband stepped upon the street the relation of carrier and passenger ceased and the defendant owed him no further duty as a carrier, and what the conductor thereafter did was not on behalf of defendant. Railroad v. Boddy, 105 Tenn. 666, 58 S.W. 646.

A. R. Taylor for respondent.

(1) The cause was presented to the jury on the theory that if the assault by the conductor with the clubbed pistol on deceased was begun on the car, and continuously followed up by the conductor until the shooting and killing deceased, it was one assault and killing. If that is the law, then we think it is clear that a number of the instructions given for the defendant were erroneous. (2) The appellant in this case, by its contract of carriage, was bound to carry the deceased to his point of destination on appellant's line, there stop the car and allow him to alight from the car. And it was a part of the duty of the carrier to even protect the passenger from assault by other persons. The conductor is the carrier in the discharge of this duty. His acts are the carrier's acts in the discharge of these duties. It is of no consequence what his authority from the carrier may be. This duty owed by the carrier must be performed. Hutchinson on Carriers, secs. 595, 596; Thompson, Neg., sec. 3185; Schoulor on Bailments, sec. 644; Chamberlain v. Chandler, 3 Mo. 245; Goddard v. Railroad, 57 Me. 202; Spohn v. Railroad, 87 Mo. 74; McGinnis v. Railroad, 21 Mo.App. 399. (3) An inspection of the instruction 2 given for defendant shows that it justifies homicide for being called vile names and being struck a blow -- which is not the law. To kill a man justifiably there must be a real or apparent need therefor to defend one's self from death or bodily injury.

VALLIANT, J. Robinson, J., absent.

OPINION

VALLIANT, J.

Plaintiff is the widow of Michael O'Brien who was killed by a conductor of one of defendant's street cars, as the petition charges, "whilst in charge of its said car, as driver and controller, negligently and with criminal intent." The suit is founded on section 2864, Revised Statutes 1899.

The plaintiff's evidence tended to prove as follows:

Michael O'Brien, plaintiff's husband, was a passenger on one of defendant's street cars; his destination was Twelfth and Hebert streets; on approaching that crossing he signaled the conductor to stop there, but the car passed Twelfth street and went on to Thirteenth, and there stopped for him to alight. O'Brien was provoked at being carried past his stopping place and spoke angrily to the conductor about it and a quarrel of words between them ensued. During the quarrel O'Brien was getting off the platform of the car backwards, facing the conductor who was striking him, or striking at him, with the butt end of a pistol he held in his hand. When O'Brien stepped down from the platform the conductor followed him to the sidewalk holding to him and beating him with the pistol. Arriving on the sidewalk the two men clinched, O'Brien got behind the conductor and threw his arms around him holding his (the conductor's) arms down by his side, and in the struggle the conductor pointed his pistol around and fired, inflicting a wound from which O'Brien died two days later.

The testimony on the part of defendant tended to prove as follows:

When O'Brien asked the conductor to stop at Twelfth street the conductor said he would give the signal, but that he did not think the motorman would or could stop there because of the condition of the street; he gave the signal, but the car did not stop until it got to Thirteenth street. O'Brien became angry at being carried past Twelfth street and used abusive language to the conductor, and passing the conductor on the rear platform struck him a blow on the side of the head, then grabbed him by the lapel of his coat and dragged him off the car and struck at him twice but missed him; the conductor reached into his pocket and got his pistol; when he drew it out he had a handkerchief fastened around it and he struck at O'Brien two or three times, holding it by the barrel. Some one at that time came up behind the conductor and he turned around and as he did so O'Brien seized him from behind and pinned his arms down to his side, and in that way they scuffled and fell and in the fall the pistol was discharged.

Under the conflicting evidence as shown in the above statement, the jury, if properly instructed, would have been justified in returning a verdict for the plaintiff if they believed her witnesses in preference to those of the defendant, and they would have been justified in finding for the defendant if they believed its witnesses in preference to those of the plaintiff. The verdict was for the defendant, but the court sustained the plaintiff's motion for a new trial on the ground that it had erred in the instructions given at the request of the defendant. The questions on this appeal relate entirely to the instructions so given.

Appellant takes the position that as this killing occurred on the sidewalk, the conductor was beyond the field in which his act as servant was chargeable to the master, and for that reason the plaintiff on her own evidence was not entitled to go to the jury.

We have now to look, not only to the law of master and servant, but also to that of carrier and passenger. It is the duty of the carrier not only to exercise care to carry the passenger safely to his destination, but also to afford him opportunity to alight in safety. In 3 Thompson on Neg., sec. 3518, it is said: "At the outset it is to be remembered that the person attempting to alight from the carrier's vehicle is still a passenger until he has accomplished the act of alighting in safety; and that the street car company is a carrier of passengers, and owes to the passenger attempting to alight that very high degree of care and attention which the law puts upon it generally, to the end of promoting the safety of its passengers. The degree of care required under these circumstances has been described as the greatest care consistent with the practical operation of its cars." While the passenger is in the carrier's vehicle he is entitled to protection from assault even from strangers, if by the exercise of the degree of care devolving on the carrier it can be afforded, and a fortiori the carrier owes it to his passenger not to maltreat him by the hands of its own servants. [Hutchinson on Carriers, secs. 595-6.] Quoting again from 3 Thompson on Negligence, secs. 3185, 3186, the author says that the law implies not only an agreement to carry safely, "but also an agreement for kind, considerate, respectful and decorous treatment to the passenger at the hands of the carrier's own servants. . . . The carrier is liable absolutely, as an insurer, for the protection of the passenger against assaults and insults at the hands of his own servants, because he contracts to carry the passenger safely and to give him decent treatment en route."

If it be conceded, therefore, that under the law of master and servant the conductor was outside of the field of his...