Lampe v. United Rys. Co. of St.

• Decision Date: 02 April 1918
• Docket Number: No. 15823.,15823.
• Citation: 202 S.W. 438
• Parties: LAMPE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

202 S.W. 438

LAMPE v. UNITED RYS. CO. OF ST. LOUIS.

No. 15823.

St. Louis Court of Appeals. Missouri.

April 2, 1918.

Rehearing Denied April 17, 1918.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by George Lampe against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and Chauncey H. Clarke, both of St. Louis, for appellant. Earl M. Pirkey, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries alleged to have been sustained by plaintiff by reason of the wrongful act of one of defendant's conductors in striking at plaintiff with a "metal punch" while plaintiff was riding in a position of danger at the rear of a rapidly moving street car operated by defendant, whereby plaintiff was caused to fall to the street and was injured. The trial below resulted in a verdict in plaintiff's favor for $1,000 actual damages and $750 punitive damages. In passing upon defendant's motion for a new trial, the court required plaintiff to remit $500 of the amount assessed as actual damages, and, upon such remittitur being made, judgment was entered for plaintiff in the total sum of $1,250. From this judgment the defendant prosecutes the appeal before us.

This is the second appearance of the case in this court. On the first appeal a judgment for defendant was reversed for reasons which will appear in our opinion in Lampe v. United Rys. Co., 177 Mo. App. 652, 160 S. W. 899.

The petition alleges that on October 6, 1009, defendant was operating a street railway in the city of St. Louis for the purpose of carrying passengers for hire; that on said day plaintiff was at the intersection of Broadway and Montgomery streets in said city, and when one of defendant's street cars, proceeding south on Broadway, stopped at this point for the purpose of receiving passengers, plaintiff, for the purpose of being carried as a passenger on such car, "stepped on the step of the rear platform of said car and an iron bar of said car located at its rear," and that the car shortly thereafter proceeded on its way; that plaintiff stood on the step and bar mentioned because the platforms and the interior of the car were filled with passengers, and that plaintiff was ready, willing, and able to pay his fare to defendant, and was waiting for an opportunity to do so, the car not being what is known as a "pay as you enter" car; and that while the car was in rapid motion, and before plaintiff had an opportunity to pay his fare, defendant's conductor in charge of the car, and while acting in the scope of his employment and authority under defendant as such conductor, "did willfully, wrongfully, unlawfully and maliciously and without provocation, cause or excuse," strike at and attempt to strike plaintiff with a metal object known as a conductor's punch, "whereby plaintiff was caused to lose his footing and to fall and to be thrown from said car while it was in rapid motion to and upon the street," whereby he was injured.

The answer is a general denial.

The evidence in plaintiff's behalf is to the effect that between 7:30 and 8 o'clock p. m. on the evening of October 6, 1909, which was "Veiled Prophet's" night in the city of St. Louis, plaintiff, who was then 16 years of age, in company with some boys of about his own age, undertook to ride upon one of defendant's south-bound cars on Broadway in said city, from the intersection of Montgomery street and Broadway to the business portion of the city. The cars were all crowded with passengers, and according to plaintiff's evidence he and his companions, after several cars had passed them, got upon the car in question, and stood upon the steps and other portions of the car about the rear platform thereof which was filled with passengers. The testimony shows that plaintiff stood with one foot upon the rear end of the step at the right of the rear platform and the other foot upon a heavy iron bar protruding from beneath the rear of the platform, as alleged in the petition. Plaintiff testified that he had money with which to...