Gotwald v. St. Louis Transit Co.

• Citation: 77 S.W. 125,102 Mo. App. 492
• Parties: GOTWALD v. ST. LOUIS TRANSIT CO.
• Decision Date: 17 November 1903
• Court: Court of Appeal of Missouri (US)

77 S.W. 125

102 Mo. App. 492

GOTWALD v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

STREET RAILWAYS—EJECTION OF PASSENGER —INJURIES—ACTION—DECLARATION OF CONDUCTOR—RES GESTÆ—INSTRUCTIONS.

1. In an action against a street railway company for injuries sustained by a passenger on his being thrown from a car by the conductor, the statement of the conductor, made shortly after the occurrence, and when passengers were crying, "Stop the car!" to the effect that he was not going to stop the line for a man, was not admissible as part of the res gestæ.

2. Though plaintiff's witnesses testified that the car proceeded without stopping, the erroneous admission of the declaration of the conductor was not harmless.

3. In an action against a street railway company, the complainant alleged that plaintiff had refused to pay his fare until the car had passed a dangerous curve, plaintiff at the time the fare was demanded having hold of a rail to keep from being thrown from the car, and being incumbered with packages, but that the conductor threw him from the moving car, which allegations were sustained by plaintiff's testimony, and the answer alleged that on refusal to pay his fare the conductor had put plaintiff off without unnecessary force, which theory was sustained by the conductor's testimony. The court instructed that if the jury found that plaintiff refused to pay his fare the conductor had a right to put him off, but had no right to use any more force than necessary, nor to subject him to injury by pushing him off while the car was moving; and, if the conductor violently pushed him from the car when it was moving so rapidly as to throw him to the ground and injure him, plaintiff was entitled to recover. Held, that the instruction was not open to the objection that it permitted a recovery on a different cause of action from that stated in the petition.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Joseph Gotwald against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Jas. M. & I. A. Rollins, for respondent.

REYBURN, J.

Action for personal injuries alleged to have been sustained May 10, 1892, about 10:30 p. m., by the forcible ejection of plaintiff from a car of defendant by its conductor. The petition, after charging that plaintiff took passage on a car of the Spring Avenue Division, proceeding north on Thirteenth across Wash street, and that, the car being crowded, he was compelled to stand on the rear platform, thus sets forth his complaint: "Plaintiff further states that he was carrying a lot of packages in his arms, and that upon approaching Fourteenth and Biddle streets said company's car was moving rapidly, and, there being a curve at this point, it became necessary for plaintiff to hold on to the car with one hand while holding the packages with the other, to prevent being thrown from the car by the swinging of said car around said curve. Plaintiff states that upon approaching Fourteenth and Biddle streets and said curve, said company's conductor demanded plaintiff's fare, and plaintiff requested said conductor to wait until they had passed this dangerous point. After passing this curve, said plaintiff arranged his packages, and proceeded to place his hand in his left pants pocket for his money to pay his fare, and, before he could produce same, said company's conductor caught said plaintiff by the shoulders and neck from the rear, and threw him forcibly and bodily from the car while said car was in motion, plaintiff striking the hard street, and injuring him as follows." The character and severity of the injuries are then detailed, and damages asked. Additional to a general denial, the defendant interposed a plea that plaintiff refused to pay his fare upon demand therefor, and that defendant's conductor put plaintiff off because of his failure and refusal to pay his fare, using no unnecessary force for that purpose. From a verdict...