Keen v. St. Louis, I. M. & S. R. Co.

• Decision Date: 03 March 1908
• Court: Missouri Court of Appeals
• Parties: KEEN v. ST. LOUIS, I. M. & S. R. CO.

108 S.W. 1125

129 Mo. App. 301

KEEN v. ST. LOUIS, I. M. & S. R. CO.

St. Louis Court of Appeals. Missouri.

March 3, 1908.

Rehearing Denied March 31, 1908.

1. DAMAGES—SPECIAL DAMAGES—PLEADING.

Damages for loss of time or earnings are special damages, and must be averred in the petition specifically enough to notify defendant that such damages will be demanded.

2. SAME—SUFFICIENCY OF PETITION.

An averment in the petition that plaintiff was seriously injured, confined to his bed, and compelled to neglect his business is not equivalent to an averment of loss of time or earnings, and is not sufficient as a basis for the admission of evidence of damage for such loss.

3. EVIDENCE — DEMONSTRATIVE EVIDENCE — BLOODY CLOTHING WORN BY ASSAULTED PERSON.

In an action for damages for an assault, a shirt spotted with blood, which was worn by the assaulted person, is admissible, in the discretion of the court, as corroborative evidence of the violence of the assault.

4. MASTER AND SERVANT—LIABILITY FOR ASSAULT BY SERVANT—SCOPE OF EMPLOYMENT.

Where a railway brakeman, while looking after the train, assaulted a passenger whom he found in a freight car instead of in the passenger coach where he should have been, the assault was committed within the scope of the brakeman's employment, and the carrier was liable for his act.

5. CARRIERS—CARRIAGE OF PASSENGERS—DUTY TO PROTECT PASSENGER.

It is the duty of a railway company to protect a passenger from assault by the trainmen.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Action by W. T. Keen against the St. Louis, Iron Mountain & Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, unless remittitur be made.

J. F. Green, for appellant. W. W. Downing and H. H. Larimore, for respondent.

GOODE, J.

According to the testimony for this plaintiff he was assaulted by a brakeman on one of defendant's trains on which plaintiff was a passenger, beaten and bruised, and thrown from the train. The incident occurred at Sikeston July 25, 1905. Plaintiff, who is a commercial traveler, purchased a ticket at Sikeston for a ride to Charleston. The train on which he expected to travel, and which carried passengers, was a mixed train, part freight and part passenger. The rear car was a passenger coach, or rather a coach which carried expressed goods in one division and passengers in the other. Plaintiff was delayed in purchasing his ticket in consequence of the station agent handing him an ordinary ticket, whereas he should have received what is called a "credential ticket." By the time he procured the right one the passenger coach was not near the depot, and as the train would not stop again at the depot before leaving the station plaintiff was directed by the conductor to get into a box car and remain there until the first stop of the train, when he could enter the passenger coach. The conductor assisted plaintiff to mount into a box car, where he seated himself until the train started, or was ready to start. Another passenger was in the box car. One of the train crew, a brakeman, observed plaintiff in the car and told him it was no place for him to be. Plaintiff explained why he was there, saying he had a ticket and was not trying to evade paying his fare. But the brakeman flew into a passion, and made an exclamation which indicated he mistook plaintiff for a man named McGee, against whom he cherished a grudge. Plaintiff stated his true name. Whereupon the brakeman, as plaintiff arose from his sitting posture on the floor of the car, struck him in the face several times, beating him into insensibility, and throwing him off the car. Plaintiff recovered consciousness, went to a house in the vicinity, washed his face, and made his way to the hotel in Sikeston where he was laid up for awhile, received medical attention, and finally recovered sufficiently to resume work. The brakeman who struck plaintiff threw a very different light on the affray by his testimony, the general effect of which was that plaintiff was intoxicated, and the purpose of the brakeman was to get him out of the car and into the passenger coach to prevent an accident to him. Plaintiff was very abusive in his language, and finally struck the brakeman in the face, thus inducing retaliation. Suffice to say the rival versions of the occurrence were both corroborated in some measure by independent testimony. A verdict was returned in plaintiff's favor for $1,000, and this appeal was prosecuted.

It is assigned for error that the court received evidence concerning the loss of earnings suffered by plaintiff in consequence of the assault, though there was no averment in the petition to which such evidence was relevant. Plaintiff testified he...