Howard v. Terminal R. Ass'n.

• Decision Date: 21 February 1905
• Citation: 85 S.W. 608,110 Mo. App. 574
• Court: Missouri Court of Appeals
• Parties: HOWARD v. TERMINAL R. ASS'N OF ST. LOUIS.<SMALL><SUP>*</SUP></SMALL>

85 S.W. 608

110 Mo. App. 574

HOWARD v. TERMINAL R. ASS'N OF ST. LOUIS.^*

St. Louis Court of Appeals. Missouri.

February 21, 1905.

EJECTION OF PORTER FROM CAR — EVIDENCE OF KNOWLEDGE — FAVORABLE INSTRUCTION — DAMAGES — REMITTITUR — NEW TRIAL.

1. It is sufficient evidence that a railroad company knew that its porters were in the habit of sleeping in their cars at terminal stations, to take the question to the jury, that they had slept in the cars for four or five years, and that the company then issued an order prohibiting trainmen from sleeping in the cars.

2. Where porters of a railroad company had by its implied permission been allowed to sleep in their cars at terminal stations, the ejection of one of them from the car in which he was sleeping was wrongful, unless the order prohibiting trainmen from sleeping therein was posted where he should have seen it, or unless he was informed thereof by one authorized to speak for the company.

3. Error in an instruction favorable to the defeated party affords it no ground for reversal.

4. Testimony of plaintiff, in an action for being shot, that he was not as steady in his nerves as before he was shot, and lisped much more than before then, is sufficient to go to the jury on the question of injury to his nervous system.

5. Error in authorizing the jury in a personal injury case to award what plaintiff had paid out for medical attendance, when there was no evidence what he paid, may be cured by remittitur of the amount it was testified the services were worth.

6. Where the controlling issue in a case, as shown by the instructions given for both parties, was whether excessive force was used to eject plaintiff, there is no error in refusing defendant a new trial on the ground of newly discovered evidence as to the right to eject plaintiff, it not being likely that an opposite result would be reached on the merits on a new trial.

Appeal from St. Louis Circuit Court; James R. Kinealy, Judge.

Action by Thomas C. Howard against the Terminal Railroad Association of St. Louis. Judgment for plaintiff. Defendant appeals. Affirmed on condition.

The plaintiff, a colored train porter, then in employ of the Chicago & Alton Railway Company, brought this action for damages consequent on injuries inflicted upon him by a watchman of defendant in attempting to eject plaintiff from a car of which he was in charge, belonging to the Chicago & Alton Railway Company, while it was lying in the terminal yards of defendant on the night of February 6, 1903. Plaintiff, in setting forth his cause of action, charged that on the date stated, as porter, and while in discharge of his duties, he was in a car of the Chicago & Alton Railway Company which had been delivered by defendant at the Union Depot in the city of St. Louis, and as such porter had the right to enter the car, and for many years prior he had enjoyed free access to the car at all times by day and by night, and, in common with other porters of the railway company, was permitted and did sleep in his car while on defendant's tracks at the Union Depot. That on the night in question, while he was asleep in his car, defendant, by one of its duly appointed and authorized servants and agents, entered such car, and intentionally, illegally, wrongfully, and maliciously committed an assault and battery upon the person and body of plaintiff by striking him with a club and by firing the contents of a loaded revolver into his body, to his great injury and suffering as detailed, and damages, compensatory and punitive, were prayed. In its defense, defendant made general denial, and, continuing, averred that as a railroad corporation it owned and operated a large railroad yard, where many cars belonging to various railroad companies were received upon their arrival in the city of St. Louis and kept until their departure therefrom. That in the conduct of its business it employed a night watchman, whose duty it was to pass through the yards and protect the property of defendant and of other railroad corporations contained therein, and see that the rules of defendant were obeyed by all persons coming within said yard, and enforce the rules of the various railroad companies, whose cars were in such yard, in so far as their rules affected the cars belonging to them and in such yard. That at the time it was expressly forbidden by the rules and orders issued by the defendant and the Chicago & Alton Railway Company for porters or other persons to sleep in or occupy the cars belonging to the Chicago & Alton Railway Company while they were standing in the yard of defendant at night. That plaintiff knew such orders had been issued, or, by the exercise of ordinary care in ascertaining the rules of the Chicago & Alton Railway Company, by which he was at the time employed as porter, he could have known that he or any other person was not allowed to occupy the cars of such railway company at night for the purpose of sleeping therein, and knew, or by exercise of ordinary care would have known, that he was not allowed by the rules of defendant to be in any car in its yard at night for the purpose of sleeping therein, and, on the occasion complained of by plaintiff, he was unlawfully, and in violation of the rules of defendant and of the railway company, occupying a car of the latter in such yard at night, and sleeping therein. Proceeding, the answer recited that on this occasion its night watchman, while in discharge of his duties as the servant of defendant, was making his rounds through its yard and the cars belonging to the various railroad companies therein, in obedience to instructions to him issued by defendant, for the purpose of enforcing the rules of defendant and of the Chicago & Alton Railway Company, and to eject from the cars any persons found occupying the same in violation of such rules. That upon entering a car of this company this night watchman discovered plaintiff occupying it, asleep, or apparently sleeping, and aroused him, informing him he was violating the rules by sleeping in the car, and ordered him to leave it, which order plaintiff refused to obey, and declared he would continue to occupy it, and the watchman, insisting on obedience to his order, informed plaintiff that he would be back later on, and plaintiff must leave the car or be ejected upon his return. That the watchman then left plaintiff, and, before returning, reported plaintiff's conduct to the Chicago & Alton Railway Company's night foreman in the yard, and was by him assured that the order and rule prohibiting porters from sleeping in such cars were in force, and requested the watchman to enforce them. Returning later to the car where plaintiff was, the watchman found him still occupying it for the purpose of sleeping therein, and again aroused him and ordered him to leave the car, which plaintiff, in angry and threatening manner, with insulting language, refused to do, and thereupon the watchman proceeded to eject him from such car, and used and intended to use no more force than was reasonably necessary to accomplish such purpose; but plaintiff resisted the attempt, used threatening and abusive language toward the watchman, and, seizing an iron poker or bar in a threatening and angry manner, advanced toward the...