Hunter v. Kansas City Rys. Co.

• Decision Date: 05 March 1923
• Docket Number: No. 14581.,14581.
• Parties: HUNTER v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

248 S.W. 998

213 Mo. App. 233

HUNTER v. KANSAS CITY RYS. CO.

No. 14581.

Kansas City Court of Appeals. Missouri.

March 5, 1923.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by J. M. Hunter against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

Charles N. Sadler and Louis R. Weiss, both of Kansas City, for appellant.

Rader & Rader and Scholer & Alford, all of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff's action is for damages for an assault committed upon him by defendant's street car conductor. There was a verdict and judgment for $500 compensatory and $2,500 punitive damages. The defendant appealed.

After stating that the plaintiff got on the car, paid his fare, and became a passenger thereon, the petition alleged that:

"Through inattention to his duties, the conductor failed and neglected to stop the car at the place plaintiff desired to alight, but carried him on to the next stopping place, and, in the controversy ensuing, said conductor vilely abused plaintiff, and as plaintiff was stepping from the car he was assaulted by said conductor and beaten over the head and hand and shoulders with a switch bar, and knocked from the car and severely injured."

The answer was a general denial, coupled with a plea that if plaintiff was assaulted, the act of said conductor was justifiable in repelling the assault of plaintiff, and in defending his body from the assault and threatened violence of plaintiff.

According to plaintiff's evidence, he was either sitting or standing near the rear end of the inside of the car proper. His stopping place was at Cleveland avenue. A block before that intersection was reached, the street car crossed the Belt Line tracks, and in order for it to do so in compliance with the law, the conductor got off the rear end, went forward to the Belt Line tracks and, seeing they were clear, signaled the car to come on across, and as it passed him he got on at the front entrance. Plaintiff says that just after the conductor got back on at the front end, plaintiff gave the pushbutton signal to stop at the next street intersection, and then went to the rear of the car in order to be ready to alight. There were two doors in the side of the rear vestibule, one the entrance door for incoming passengers, and the other, just in front of it, the exit door for departing passengers, the two doors being separated by a railing curving around toward the inside of the car. Plaintiff says the conductor, after getting back on at the front of the car, did not come back to the rear but stopped to chat with the motorman; that when the car reached Cleveland avenue, it stopped in obedience to the signal he had previously given, but as no conductor was at the rear vestibule to open the door, plaintiff walked around the railing to where the conductor usually stood, and pulled the lever thinking to open the entrance door immediately in front of him, but by mistake he pulled the wrong lever and opened the exit door on the other side of the railing. He at first said he pushed it to and the car went on, and then said the car went on, and, after it started, he pushed it to. He stood there while the car went on, and in a moment the conductor came on back to where he was. Plaintiff says he said nothing to the conductor when he came back nor during the time the car traveled the two blocks to the next stop at Myrtle avenue, the skip every other street stop system being then in force.

When the car got to Myrtle avenue, the plaintiff was standing in "front of the entrance door and at the conductor's side. No passengers to get on were at the Myrtle stop, so the conductor did not open the entrance door but did open the exit door to let a number of passengers out and told plaintiff to go around to the exit door. Plaintiff says he walked around the railing and did not say a word as he was doing so, but when he got around to the exit door and was getting off, he said to the conductor: "If you had been tending to your business, I would have gotten off where I wanted to." Plaintiff says he was on the step going out, and the conductor replied, "Go to hell," to which plaintiff replied, "To hell with you"; whereupon the conductor threw open the other door, grabbed the switch bar and got on the step. Plaintiff, who was then on the ground and about two feet from the car, said, "Don't you hit me with that." The conductor, standing on the step and holding on to the upright rod or handhold, reached out from the car and struck plaintiff on the head with the switch bar. Plaintiff threw his dinner bucket at the conductor, but does not know whether it struck the conductor or not. He says the conductor dodged and drew back his bar as if to strike again, whereupon plaintiff "dodged in" and got his head against the conductor's body and encircled the latter's legs with his arms, and, in the struggle, followed the conductor up into the car, the conductor in the meantime raining blows upon his shoulder and body. Plaintiff says he was not attempting to drag the conductor from the car nor to follow him into the car, but merely to hold his own head so close against the conductor's body that the latter could not hit plaintiff on the head with the bar, or "get a good swing on me." He followed him "right upon the car, and I stayed right close to him." They were then separated by the motorman and perhaps others. Plaintiff denied that he called the conductor a vile name before the latter struck him but said that he might have said, "You son of a bitch or something like that," immediately after being struck and at the time he threw his dinner bucket. He did not recall using that term but once. Did not know whether he called him a bastard or not, but did not recall it, and does not know what he said. He then said he was not certain that he hit the conductor when he threw the dinner bucket, he thinks he may have "hit him in the back, but it would have been a very light lick" if he did.

The foregoing is the testimony given by plaintiff. In addition thereto, he placed upon the stand two young ladies (sisters) and a man by the name of Askins. The two girls knew very little about the affair, except that they saw the conductor strike plaintiff with the bar while the latter was standing on the ground and heard plaintiff then call the conductor the vile name above mentioned. Askins says that he was sitting on the side, or lengthwise, seat at the rear end of the car; that when the car reached Cleveland avenue the conductor was at the front end and plaintiff was at the rear end, but no one was there to open the door, so he walked around the railing to the entrance door and tried to open it but could not, and the car went on. By the time the car got to Myrtle avenue the conductor was at his post in the rear vestibule at the entrance door. When the car stopped, the conductor opened the exit door but not the entrance door, there being no passengers to get on. Askins says plaintiff did not ask the conductor to let him out the entrance door; that plaintiff walked around to the entrance door and got off; that he (witness) was not attentive to what was said; that as the plaintiff was getting off, witness heard him say, "You won't let a fellow out," and the first thing he heard the conductor say Was, "Don't curse me;" that he had not heard plaintiff cursing, and all the conversation he heard was as the latter was getting off. Witness did not think plaintiff had cursed, but he could not say he had not. However, he did hear the conductor say, "Don't curse me," and that was the first he heard the conductor say; that he couldn't say what the plaintiff replied; that plaintiff got off the car and was about two feet from it when the conductor got off the car and struck plaintiff with the bar on the head once and then got back on the car; on being struck the plaintiff called the conductor the vile name and threw his dinner bucket at him and rushing up to the conductor, caught him around the knees, whereupon the conductor struck plaintiff several times, and then they were separated. On cross-examination, witness would not swear positively whether the vile name was used before or after the conductor struck plaintiff, but did not think it was before, and was "pretty sure" it was after plaintiff was struck.

According to the defendant's evidence, the plaintiff came to the entrance side just as the car was crossing Cleveland avenue. The conductor asked him if he wanted off at the next stop and the plaintiff said, "Yes." He said nothing more until the car got to Myrtle avenue and stopped, and plaintiff said, "You damned son of a bitch, you could have let me off at Cleveland if you had wanted to." The conductor said, "Who?" and the plaintiff replied, "You, you damned dirty son of a bitch." The conductor says that started it all. He told the plaintiff not to curse him, and the plaintiff keeping on, the fight started. The plaintiff was on the step and the conductor struck him with his fist. While they were fighting, plaintiff on the ground and he on the step, the two were separated, and the conductor got back on the car, whereupon the plaintiff threw his dinner bucket at the conductor and came back into the vestibule after him, and, thinking the plaintiff wee' reaching far his knife, the conductor seized a brake shoe lying near and struck him over the head. They clinched and were separated, and that ended the fight, the plaintiff was taken off the car, and the conductor closed the door.

The assignments of error relate only to the refusal of defendant's refused instructions 1 and 3 and to the, alleged extensiveness of die verdict. Said instruction No. 1 sought to embody and submit the principle that if the conductor was in the orderly discharge of his duties and the plaintiff caused or brought on or provoked the difficulty by the use of vile and opprobrious epithets to him,...