Garrett v. St. Louis Transit Co.

• Decision Date: 31 March 1909
• Citation: 219 Mo. 65,118 S.W. 68
• Parties: GARRETT v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

118 S.W. 68

219 Mo. 65

GARRETT v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. EVIDENCE (§ 219)—ADMISSIONS.

That a party induced a witness by threats of a criminal prosecution to return to the state and testify is not admissible as an admission of such party, since it does not show an attempt to improperly influence the witness or his testimony, in the absence of any proof indicating an evil purpose on the part of the party.

2. WITNESSES (§ 309) — IMPEACHMENT — EVIDENCE.

In an action against a street railway company for the death of a person ejected from the car by the conductor for failure to pay fare, the fact that the conductor, testifying for the company, refused to testify at the coroner's inquest, on advice of the company's attorney, on the ground that his testimony might incriminate him, was inadmissible to impeach him.

3. WITNESSES (§ 393)—IMPEACHMENT—INCONSISTENT STATEMENTS.

The testimony given by a witness at the coroner's inquest is admissible to impeach him, when he subsequently testifies in a court regarding the same matter.

4. WITNESSES (§ 305)—PRIVILEGE—WAIVER.

A witness cannot be compelled to testify at a coroner's inquest where he believes that his testimony will incriminate him; but he may waive his constitutional right, which is a personal privilege, and testify on all matters relevant to the case.

5. CARRIERS (§ 364)—INJURIES TO PASSENGERS—CARE REQUIRED.

One who boards a street car with no intent to pay fare, and who does not pay fare when requested by the conductor, and who refuses to leave the car on the demand of the conductor, is a trespasser, and the street railway company owes to him only the duty of not unnecessarily and intentionally injuring him.

6. CARRIERS (§ 381)—INJURIES TO PASSENGER—ACTION —EVIDENCE.

One suing a street railway company for the death of a person ejected from a car by the conductor thereof, and basing his right to recover on the ground that decedent was a passenger and criminally assaulted by the conductor, must show not only that decedent was assaulted and killed by the conductor, but that he was a passenger.

7. CARRIERS (§ 370)—PASSENGERS—INJURIES —LIABILITY.

Where, on the refusal of a passenger to pay fare when demanded by the conductor, a fight ensued, which was brought on by the passenger or voluntarily entered into by him during which the passenger was thrown or fell from the car and received injuries causing his death, the carrier was not liable for the acts of the conductor.

8. DEATH (§ 14)—ACTION FOR DEATH—STATUTES.

To authorize a recovery under Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), authorizing recovery for the death of a person from the negligence or "criminal intent" of any servant in charge of trains, etc., the evidence must show a criminal intent, followed by criminal conduct resulting in the fatal injury.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Annie Garrett against the St. Louis Transit Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff filed this suit in the circuit court of the city of St. Louis on April 8, 1904, against the defendant, for the recovery of $5,000 damages for the alleged wrongful killing of her husband, John Garrett, on the 28th day of March, 1904, by one of defendant's conductors, in charge of a car on the Olive street line, while attempting to eject Garrett for the alleged failure to pay his fare. The petition was in three counts, and a trial was had thereon before the court and a jury, which resulted in a verdict and judgment for defendant; and, the court refusing a new trial, the cause was brought here by the plaintiff for review.

The first count of the amended petition was as follows:

"That on the 28th day of March, 1904, the plaintiff's said husband, John Garrett, entered and was received by the defendants as a passenger on an east-bound car of the defendants on the said Olive street, at Beaumont street, on their said line of street railroad; that while the plaintiff's said husband was riding on said car on the rear platform thereof, and while said car was running at a rapid rate of speed on the said Olive street, between Jefferson avenue and Twenty-Third street, the defendants' conductor, in charge of their said car, and whilst running, conducting, and managing said car as the agent, servant, and employé of the defendants, wrongfully and forcibly attempted to eject the plaintiff's husband from said car, and in so doing caused the plaintiff's said husband to fall from said car while said car was in rapid motion, and to strike the street with great force and violence, whereby the plaintiff's said husband sustained injuries from which he died in the said city of St. Louis on the 13th day of March, 1904, and within six (6) months prior to the commencement of this action; that said acts of the defendants' said conductor in attempting to eject the plaintiff's said husband from said car, and in causing him to fall therefrom, were done negligently and with criminal intent, and that the injuries sustained by the plaintiff's said husband, and from which he died as aforesaid, resulted from, and were occasioned by, said negligence and criminal intent of the defendants' said agent, servant, and employé, to wit, the conductor aforesaid, whilst running, conducting, and managing the defendants' said car; and that by reason of the death of the plaintiff's said husband, caused as aforesaid, an action has accrued to the plaintiff to sue for and recover from the defendants the sum of five thousand dollars ($5,000)." Wherefore, the plaintiff prays judgment, etc.

The second count is the same as the first, with the exception that it charges that the wrongful acts complained of and which resulted in the death of plaintiff's husband were done negligently. The third count is also the same as the first, with the exception that it charges that the wrongful acts of the conductor of defendants which resulted in the death of plaintiff's husband were done with criminal intent.

The answer of defendant, St. Louis Transit Company, omitting formal parts, is as follows:

"Now comes the St. Louis Transit Company, and answers the three counts of plaintiff's petition as follows:

"This defendant denies each and every allegation in each and every count contained. "This defendant, further answering each and every count, states that John Garrett boarded the street car mentioned in each count, and refused to pay a fare thereon, and after riding some blocks insisted upon leaving said car without paying fare, and while said car was in motion, by reason of which insistence of his he sustained the injuries, if any, mentioned in each count of plaintiff's petition.

"This defendant, further answering each and every count of plaintiff's petition, stated that John Garrett, mentioned in each count thereof, boarded a street car and attempted to pull the conductor off said car while it was in motion, and while struggling with the conductor, and when about to succeed in pulling him off the car, a person unknown to this defendant kicked said Garrett and caused him to release his hold upon said conductor and fall to the ground, whereby he received the injuries, if any, alleged in each count of the plaintiff's petition.

"Wherefore, having fully answered, this defendant asks to be discharged with its costs."

The answer of the defendant United Railways Company of St. Louis is a general denial.

Plaintiff's evidence tended to prove that at the time of the injury and death of John Garrett he and plaintiff were husband and wife, and that he died of the injuries received, at the City Hospital, in the city of St. Louis, on March 30, 1904.

On the 28th of the same month, about 6 o'clock p. m., John Garrett boarded an east-bound Olive street car at Beaumont street, and stood on the steps of the rear platform of the car. What occurred after the car reached Jefferson and Olive streets, the point where the injury occurred, is well told in the language of plaintiff's witnesses, as substantially stated in appellant's abstract of the record, which is as follows:

Direct examination:

Mrs. Hannah Williams testified that she was a laundress, living in St. Louis. That she was acquainted with John Garrett. That on March 28, 1904, about 6 p. m., she boarded an east-bound Olive street car at Sarah and Olive streets, intending to get off at Jefferson and Olive streets. When the car reached Beaumont and Olive streets, John Garrett boarded it. When the car reached Jefferson and Olive it stopped on the east side of Jefferson and witness got off. When she came out of the door of the car to get off, Garrett was standing on the rear of the back platform; the conductor was in front of him, with his right hand holding Garrett's left arm. After witness got off car she turned around and saw the car going east. Garrett was standing on the step with his back to the sidewalk. The conductor was in front of him, with his hand on Garrett's shoulder. Garrett was standing about the middle of the first or second step, in front of the upright iron bar, which runs from the middle of the step to the roof of the back platform. His back was to the south, and the conductor was facing him, and right up against him with the iron bar between them. As the car proceeded, witness noticed conductor give Garrett a shove, and Garrett fell backwards to the street, Garrett at the time of the shove having one hand on the upright bar. At the time the conductor shoved Garrett a crowd came out of the car, and some one kicked Garrett, but witness could not tell who it was that kicked. This kick followed the shove. Witness went down to where Garrett was lying; blood was coming out of his mouth. Garrett fell about a half block east of Jefferson avenue, the car going at a rapid speed at the time. Witness went near enough to observe whether or not there was any odor of liquor on Garrett's breath, but did...