Green v. United Rys. Co.
| Decision Date | 06 November 1918 |
| Docket Number | No. 15177.,15177. |
| Citation | 200 Mo. App. 303,206 S.W. 237 |
| Parties | GREEN v. UNITED RYS. CO. OF ST. LOUIS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
Action by Charles A. Green against the United Railways Company of St. Louis.
From judgment for plaintiff, defendant appeals. Reversed, and cause remanded for new trial.
Boyle & Priest and George T. Priest, all of St. Louis, for appellant. Sheridan Webster and George Safford, both of St. Louis, for respondent.
This is an action whereby plaintiff seeks to recover damages, compensatory and punitive, because of the alleged wrongful act of defendant's servant in ejecting him from one of defendant's street cars in the city of St. Louis. The trial below resulted in a verdict and judgment for plaintiff in the sum of $50 compensatory and $500 punitive damages, and the case is here on defendant's appeal.
The petition alleges that defendant street railway company was originally incorporated under the name "Central Traction Company of St. Louis," and thereafter lawfully changed its name to "United Railways Company of St. Louis," and that defendant, before thus changing its name, for a valuable consideration, contracted and agreed with the city of St. Louis "that transfers should be given so as to transport passengers, by continuous trip, from any point on defendant's system of street cars in the city of St. Louis to any other point on defendant's street car lines in said city." And it is alleged that on June 13, 1913, plaintiff boarded a "south-bound Union avenue street car" operated by defendant, at the intersection of Florissant and Robin avenues, in said city, "for the purpose of paying defendant the lawful and customary fare, and in consideration thereof being transported by defendant as a passenger on said car and other cars of defendant to the intersection of Grand avenue and Hebert street," a point on defendant's street railway system in said city; that plaintiff boarded the car and tendered to defendant's conductor in charge thereof the lawful and customary fare and requested defendant's conductor to give him a transfer that would enable him, without the payment of additional fare, to be transported continuously to Grand avenue and Hebert street, but that defendant, through its said conductor, in violation of the contract referred to in the petition, refused to give plaintiff such transfer, and thereupon "unlawfully, intentionally, maliciously, without any just cause or reasonable excuse, violently and wrongfully ejected plaintiff from said car, used unnecessary force, and thereby bruised and strained plaintiff's elbows, back, and knees, and greatly humiliated plaintiff, to his damage in the suns of $1,000." Judgment is prayed for $1,000 compensatory and $10,000 punitive damages.
The answer is a general denial, coupled with a plea to the effect that whatever injuries plaintiff sustained were caused by his refusal to pay his fare, as a result of which he was ejected from defendant's car, and it is averred that defendant's employé who ejected plaintiff used only such force as was absolutely necessary under the circumstances.
The evidence shows that plaintiff boarded one of defendant's street cars on its Union avenue line, at the point mentioned in the petition, to wit, the intersection of Florissant and Robin avenues. Plaintiff's ultimate destination was Grand avenue and Hebert street in said city, and he desired to be transported to that point over three of the connecting lines of defendant's system, viz. the Union avenue, the Bellefontaine, and the Grand avenue lines, and insisted upon the right to be so transported for one fare, and to receive from the conductor in charge of the car on the Union avenue line a transfer entitling him to ride on both of the other lines mentioned. It appears that plaintiff was at the time a member of a certain organization or league which was seeking to compel the defendant to issue to its patrons, upon request therefor, transfers of the character mentioned; that he customarily rode upon these three of defendant's car lines, in the order mentioned, in going to his work, and had repeatedly demanded such transfers. He had had various controversies with defendant's conductors on the Union avenue line regarding the matter, and had upon many occasions been permitted to ride upon these cars without paying his fare, paying upon the Bellefontaine line and receiving a transfer to the Grand avenue line. According to his own testimony, he had thus ridden, without paying his fare upon the Union avenue cars, for about 75 days.
Upon the day mentioned plaintiff, according to his testimony, got upon the rear platform of defendant's car, and when the conductor asked him for his fare, he held up in his right hand a half dollar, and in his left hand a card containing these words, "Transfers shall be issued so as to transport passenger by continuous trip from one point on the system to any other point on the system for a fare of five cents," and said: "Here is the law and here is my fare. If you obey the law I will pay my fare; otherwise I will not pay it. Can you give me the transfer I want?' He says that he demanded a transfer "to get on the Grand avenue car, but that the conductor refused to give him any transfer other than one entitling him to ride upon the Bellefontaine line; and that, upon his continued insistence that he would not pay his fare unless he received the transfer demanded, the conductor, saying that "he was getting tired of this monkey business," stopped the car, and seizing him by the lapel of his coat jerked him violently and threw him off the car. According to plaintiff's testimony he told the conductor that he would offer no violence, and that he did not resist the conductor in any way; but that the latter nevertheless hurled him violently from the car, causing him to fall into a ditch, whereby one wrist was sprained, and, as he claims, his back was wrenched. The testimony of the witnesses for plaintiff tends to corroborate him in respect to the manner in which he was ejected from the car. On the other hand, defendant's evidence tends to show that no more force was used than necessary in ejecting plaintiff; that the conductor merely took plaintiff by the arm and "walked him off," and that he did not fall.
The refusal by the trial court of an instruction in the nature of a demurrer to the evidence offered by defendant is assigned as error. The argument in support of this assignment of error proceeds upon a the theory that, under the circumstances shown in evidence, defendant was lawfully entitled to eject plaintiff from its car, as for a wrongful refusal to pay his fare or unconditionally tender the same. A careful consideration of the matter has led us to the conclusion that while this assignment of error cannot be sustained—because of the evidence as to the use of unnecessary force in ejecting plaintiff— appellant is correct in its contention that plaintiff had no right to remain upon the car without paying his fare or unconditionally tendering it.
We assume that plaintiff, had he paid his fare, would have had...
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