Case v. St. Louis Public Service Co.

• Citation: 192 S.W.2d 595,238 Mo.App. 1029
• Parties: Inez Rosetta Case, Respondent, v. St. Louis Public Service Company, a Corporation, Appellant
• Decision Date: 19 February 1946
• Court: Missouri Court of Appeals

192 S.W.2d 595

238 Mo.App. 1029

Inez Rosetta Case, Respondent, v. St. Louis Public Service Company, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis District

February 19, 1946

Appeal from the Circuit Court of the City of St. Louis; Hon. Eugene J. Sartorius, Judge.

Affirmed.

Carpenter & Cleary and Frank X. Cleary for appellant.

(1) The court erred in refusing to sustain defendant's motion for a directed verdict, at the close of plaintiff's case, and again at the close of all of the evidence in the case. (a) The conduct of the colored passenger, before he was called an insulting name was not such as to warn the operator that he intended to strike plaintiff's decedent. Most of the witnesses testified they heard no argument, profanity, or loud talking in the car, and that all of the passengers were conducting themselves in a normal manner before this occurred. (b) The striking of plaintiff's decedent was sudden and unexpected, and could not have been anticipated by the operator of the street car until the insulting name was directed to the colored passenger. Thereafter, the operator did not have sufficient time to interfere, as the assault occurred within a very few seconds. Lige v. Chicago, B. & Q. R. R. Co. (Mo.), 204 S.W. 508; Woas v. St. Louis Transit Co., 198 Mo. 664; Spohn v. Mo. Pac. R R., 87 Mo. 74; 10 C. J. 904. (c) The operator was under no duty to anticipate that one passenger would violate the law and strike another. Shepard v. Kansas City Public Service Co., 162 S.W.2d 318.

Henry C. Stoll for respondent.

Orville Richardson of counsel.

(1) There was abundant substantial evidence that the motorman negligently failed to protect Mr. Case from the assault of the colored fellow passenger. Therefore, the court did not err in denying defendant's motion for a directed verdict. (a) The defendant was under a duty to exercise the highest degree of care to protect Mr. Case, a passenger, from the insults, threats and violence of the colored fellow passenger. Spohn v. The Mo. Pac. Ry. Co., 101 Mo 417, 14 S.W. 880, s. c., 87 Mo. 74, 80, s. c., 116 Mo. 617 22 S.W. 690, s. c., 122 Mo. 1, 26 S.W. 663; Utterback v. St. L. & S. F. Ry. Co. (Mo.), 189 S.W. 1171, 1173; Hendrix v. United Rys. Co. (Mo.), 189 S.W. 812, 813; Lige v. Chic., B. & Q. R. Co., 275 Mo. 249, 204 S.W. 508, 511; Abernathy v. Mo. Pac. R. Co. (Mo. App.), 217 S.W. 568, 569-570; 10 C. J. 900; 13 C. J. S. 1294; 10 Am. Jur. 266; 2 Restatement of Torts, section 449. (b) The motorman knew that a dispute or argument or trouble had started while the car was at least four blocks from the place where the final assault took place, knew that the colored man was mad and was standing over Mr. Case, arguing and waving his arms in a threatening manner. Both the colored man and Mr. Case unavailingly appealed to him to settle their dispute. He saw and heard this angry altercation, and saw the colored man walk eighteen or twenty feet and strike Mr. Case, whose back was turned. He saw the first blow fell Mr. Case, who then arose to be struck and repeatedly beaten until and even after he slumped forward onto the turnstile. He had notice and knowledge of the difficulty and should have foreseen and anticipated the assault which he not only failed to prevent but actually provoked. Abernathy v. Mo. Pac. R. Co. (Mo. App.), 217 S.W. 568, 569-570; Liljegren v. United Rys. Co. (Mo. App.), 227 S.W. 925, 927; Williams v. East St. L. & S. Ry. Co., 207 Mo.App. 233, 232 S.W. 759, 760; Koenig v. St. L. Public Service Co. (Mo. App.), 45 S.W.2d 896, 898; Norfolk & W. Ry. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879; Jones v. Eastern Greyhound Lines, Inc., 159 Misc. 662, 288 N.Y.S. 253; Isenberg v. N. Y., N. H. & H. R. Co., 221 Mass. 182, 108 N.E. 1046. (c) The motorman could and should have stopped the car, asserted his authority, investigated the complaint about smoking, settled the argument and separated the two disputants. If necessary, he could and should have ejected either one or both of the men, or arrested them, or called a policeman, or summoned other passengers to his assistance. He at least should have warned Mr. Case of the colored man's unseen approach from behind, and should have forcibly intervened to ward off the first or any following blows which fell unopposed upon Mr. Case. He had adequate opportunity to prevent Mr. Case's death. Spohn v. The Mo. Pac. Ry. Co., 87 Mo. 74, 80; Lige v. Chic., B. & Q. R. Co., 275 Mo. 289, 204 S.W. 508, 511; Williams v. East St. L. & S. Ry. Co., supra; Pittsburgh, Fort Wayne & Chic. Ry. Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224, 227; Spalt v. Eaton, 118 N. J. L. 327, 192 A. 576, 579. (d) The motorman did nothing except to delegate his power, authority and duty to the colored man without investigating to determine if Mr. Case was smoking. He did nothing to stop the argument or assault either before or after it began. His negligence was for the jury to determine. Cases cited, supra; Grubb v. K. C. Rys. Co., 207 Mo.App. 16, 230 S.W. 675, 678; Koenig v. St. Louis Public Service Co. (Mo. App.), 45 S.W.2d 896, 898; Hinds v. Rice, 142 Ark. 159, 218 S.W. 851. (e) The defendant's negligence was at least a contributing cause of the injury and death. Neering v. Ill. Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497, 503; Jones v. Eastern Greyhound Lines, Inc., 159 Misc. 662, 288 N.Y.S. 523; McWhorter v. Dahl Chevrolet Co., 229 Mo.App. 1090, 88 S.W.2d 240, 245, 247; O'Gara v. St. Louis Transit Co., 204 Mo. 724, 103 S.W. 54; Stoltze v. United Rys. Co., 183 Mo.App. 304, 166 S.W. 1102; Lottes v. Pessina (Mo. App.), 174 S.W.2d 893, 897; Cregger v. City of St. Louis (Mo. App.), 11 S.W.2d 750, 753.

McCullen, J. Hughes, P. J., and Anderson, J., concur.

OPINION

McCULLEN

This action was brought by respondent, as plaintiff, against appellant, as defendant, under Section 3652, Revised Statutes Missouri 1939 (Mo. R. S. A., sec. 3652), for damages for the death of plaintiff's husband who was fatally injured when beaten by a colored man on one of defendant's Hodiamont street cars about 11:00 P. M. on August 6, 1944. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $ 2500. After an unavailing motion for a new trial, defendant duly appealed.

Plaintiff's amended petition alleged that defendant, a common carrier of passengers for hire, failed to exercise the highest degree of care to prevent the death of plaintiff's husband, Charles Case, who, while a passenger on one of defendant's Hodiamont street cars in St. Louis, was assaulted and beaten by a fellow passenger whereby he sustained injuries directly resulting in his death.

Defendant's answer to plaintiff's amended petition was a general denial.

Defendant contends that the trial court erred in refusing to sustain its motion for a directed verdict made at the close of plaintiff's case and again at the close of all the evidence. Defendant's contentions make it necessary for us to set forth the evidence rather fully.

The evidence shows that defendant's Hodiamont street car line, where it crosses Maple Avenue, turns from a westerly direction to a northerly direction. The westbound street car makes a stop on Maple Avenue at Hodiamont before it turns north onto a private right of way. The streets which intersect Hodiamont line as it runs north from Maple Avenue are Horton, Bartmer, Suburban and Etzel Avenues, in the order named. The car on which the assault occurred was a new streamlined type of car with entrance doors at the front and exit doors at the middle of the car on the right side. The middle doors are also referred to as center doors. Seats, each accommodating two passengers, faced forward along both sides of the middle aisle. The seat for the motorman was at the left front of the car. There was a large mirror above him by means of which he could see back into the car. To his right was the fare box and entrance platform. Immediately behind the motorman, also referred to as operator, was a bar running from the left side of the car to the turnstile, with a chain hanging between the turnstile and the right side of the car. There were six seats on the right side of the car between the front entrance doors and the exit doors. Photographs showing the interior of the car were introduced in evidence and in connection therewith the distance from the turnstile to the middle exit doors was estimated to be from twelve to eighteen or twenty feet.

It appears from the evidence that plaintiff's husband, Mr. Case, was on his way home and was seated alone on the right side of the car in the second seat forward of the middle exit doors. A colored woman and a colored man were seated behind him.

It was admitted by defendant that it owned and operated the street car; that Mr. Case was assaulted by a colored man and received injuries from which he died on the floor of the street car on the evening in question between 10:00 and 11:00 o'clock.

Albert Martin, a colored man who was a passenger on the car testified that he was sitting with his sister on the left-hand side of the car opposite the center exit doors, a little in front of a white man who was sitting on the opposite side; that a little more than a block after the car had passed Maple Avenue his attention was attracted by a colored man who was sitting with a colored woman in the first seat forward of the exit doors of the car; that the colored man said something to the white man and then started up to the front of the car to the motorman; that the colored man spoke to the motorman about the white man who was sitting alone in his seat; that the colored man asked the operator if it wasn't against the law for a person to smoke in the car and the operator said it was, and the colored man told the operator that a...