Hermann v. St. Joseph Railway, Light, Heat & Power Company

• Decision Date: 09 May 1910
• Citation: Hermann v. St. Joseph Railway, Light, Heat & Power Company, 129 S.W. 414, 144 Mo.App. 147 (Kan. App. 1910)
• Parties: HARRY HERMANN, Respondent, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant
• Court: Kansas Court of Appeals

129 S.W. 414

144 Mo.App. 147

HARRY HERMANN, Respondent, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 9, 1910

Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.

Judgment affirmed.

R. A Brown for appellant.

C. V Hickman and Brewster, Ferrell & Mayer for respondent.

OPINION

JOHNSON, J.

Plaintiff alleges, in his petition, that defendant unlawfully and maliciously assaulted him and ejected him from a street car operated by defendant on one of the lines of its street railway system in St. Joseph.Both compensatory and exemplary damages are claimed.The answer is a general denial.A trial to a jury resulted in a verdict awarding plaintiff $ 1250 as compensatory damages and allowing nothing by way of exemplary damages.Defendant appealed and contends, first, that the verdict is so clearly against the evidence that it should be pronounced the result of passion and prejudice on the part of the jury.The well-settled rule that prevents us from interfering with a verdict on the ground that it is against the weight of the evidence is recognized by counsel for defendant whose contention, in substance, is that the demurrer to plaintiff's evidence should have been sustained on the ground that the evidence clearly discloses, not only a lack of merit in the cause of action asserted, but that plaintiff began and prosecuted the action in bad faith and pursuant to a prearranged plot to involve defendant in a lawsuit of this nature.

Facts disclosed by the evidence of plaintiff are as follows: The incident which gave rise to the controversy occurred early in the morning of February 13, 1909.Plaintiff, who was employed in a Turkish bath establishment at Sixth and Edmond streets in St. Joseph and who lived in the north part of the city near defendant's "Union line," left home before daylight to go to work.He boarded a slowly moving, inbound car, in charge of a conductor and two motormen--one the regular motorman and the other a "student."The conductor refused to receive him as a passenger and ordered him to leave the car for the reason that the car was not then in service for the transportation of passengers, but was on its way from the car barns, which were located on the "Union line," to Fifth and Edmond streets, a junction point where the car would begin its service on the "Wyatt Park line."That junction was only a block from plaintiff's place of business and he requested that on account of the severe cold he be allowed to ride to the junction and he offered to pay his fare.The conductor refused the request and told plaintiff to get off.Plaintiff kept his seat and when the car had crossed some railroad tracks, the motorman came back into the car at the request of the conductor to assist in the ejection of plaintiff.Plaintiff testified: "He(the motorman) had a piece of brass; it looked like a wrench or something in his hand . . . the conductor grabbed me and started me to the door. . . .He(the motorman) took hold of the other side and helped him back. . . .I walked to the door . . . Well, I started--I had hold of the handle like this (indicating); was facing the way the car was going and just as I was going to get off, the conductor kicked me and then I fell.Q.What did the conductor kick you with--what part of his body?A.Kicked me with his foot.Q.Where did he strike you?A.Hit me in the abdomen, right here (indicating).Q.Which side?A.On the left side."

At this point plaintiff lost consciousness and did not regain it until two weeks had elapsed.A colored man introduced as a witness by plaintiff was on the street and saw plaintiff ejected.He testified "He(the conductor) come back to the man again and lays his hands on his shoulder.I don't know what the words was at all and he then turned around and looked and the motorman came in and they both held their hands on his shoulder. . . .As he went to the steps he grabbed hold of the car and they shoved him out.Q.How did they shove him out, with their fists or hands?A.I don't know; so quick--only just come around and shove him with his knee and feet; he held the car that way as if he was going to get on. . . .Q.What became of the man; how far did he go from the car?A.When he first fell off the car, he went down, he got up and fell again and hollered for me to come over and I said, 'No, sir.I ain't going to.'. . . He just got up and rolled and fell and he wanted me to come to him and I told him, 'No,' I was not coming to him."

The witness waited for another car to come and when it came, he stopped it and called the conductor's attention to plaintiff who was lying in the street.There was a policeman on the car and he and the conductor put plaintiff aboard and took him to Fifth and Edmond streets and from there to the bath house.The policeman testified: "The old gentleman--the colored man--first said that there was a man here on the south side of the track; at that time we were pulled across the track--the conductor flagged the car and they pulled across the track and stopped and I found this man that was there hurt, and I got off and I helped the conductor get him on the car. . . .Q.How did he get to the bath house?A.We helped him there. . . .Q.What was his condition at the bath house?A.Seemed hurt. . . .Q.What were his actions at the bath house; what did he do; what happened to him?A.Well, I believe one time he got off the cot and started like he was going straight across the room and he fell and hit his head against the table or something there. . . .Q.What was his manner as to whether he understood what he was saying or not?A.Well, it seemed that he understood part of the time what he was saying and part of the time I don't really think he did."

A doctor called to the bath house to give plaintiff professional attention testified that plaintiff"wasn't unconscious; he was rather delirious; talked foolishly. . . .Q.Was he able to get up and walk?A.He would get up and fall back and once when I had my back turned for a moment, why he got up and fell on the floor. . . .Q.Did you accompany him home?A.Yes, sir. . . .Q.Was he ever confined to his bed?A.About four weeks after the accident.Q.What injuries, if any, did you find at the time you saw him, what was his condition?A.Well, at first he couldn't stand up; that seemed to be due to the pain that he had in his head; a kind of vertigo; he had positive symptoms of concussion of the brain; he would be taken with blindness and he would raise his head and his eyes would turn up; he couldn't see; I examined him; there was no wound or anything of that sort such as would...