Liljegren v. United Rys. Co.

• Decision Date: 08 February 1921
• Docket Number: No. 16400.,16400.
• Parties: LILJEGREN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

227 S.W. 925

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

No. 16400.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

"Not to be officially published."

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

Chas, W. Bates, T. E. Francis, and Alva W. Hurt, all of St. Louis, for appellant. Chas. A. Lich, of St. Louis, for respondent.

ALLEN, J.

The petition herein, after alleging that the defendant is a common carrier of passengers for hire in the city of St. Louis, alleges that on September 21, 1917, plaintiff became a passenger upon one of defendant's cars, on its Cass avenue line, in said city, whereupon it became the duty of the defendant to transport her well and safely to her destination; that after plaintiff so became a passenger upon the car one Gordon was received as a passenger thereon by defendant's conductor in charge thereof; that when Gordon boarded the car he was intoxicated to such an extent that his condition was noticeable to any one observing him, and that defendant's conductor knew that Gordon was so intoxicated; and it is averred that after Gordon had "staggered back and forth up and down the aisle of said car several times" he "deliberately, willfully, negligently, and against the will and wish of the plaintiff did assault her in this, to wit:

"That he stopped opposite the seat in said car on which plaintiff was seated, fell over on her, and deliberately, suddenly, and without warning kissed plaintiff on the cheek; this in the full presence and view of all of the other passengers on said car."

For her first assignment of negligence plaintiff alleges that defendant was negligent in accepting Gordon as a passenger, knowing that he was intoxicated, and in permitting him to ride in the car in his intoxicated condition.

As a second assignment of negligence plaintiff avers that defendant was negligent, after having accepted Gordon as a passenger, and after defendant's conductor had observed Gordon's intoxicated condition and had observed him staggering up and down the aisle of the car, "in failing and refusing to eject him from said car, but instead permitted him to remain in said car to the annoyance and danger of the other passengers, until after he had assaulted the plaintiff, as aforesaid."

And plaintiff alleges:

"That as a direct result of the aforesaid assault and battery committed upon her in the manner, place, and time aforesaid, she was subjected to great embarrassment and humiliation and was made the object of ridicule and jest by the passengers on said street car and also by her relatives, friends, and acquaintances; that her feelings have been greatly hurt and injured; and that she has suffered intense mental anguish."

Judgment is prayed in the sum of $7,500. The answer is a general denial. The trial before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $500, from which the defendant appeals.

Plaintiff's testimony is that she did not see Gordon when he entered the car, but that her attention was attracted to him by the noise and disturbance that he was making. She said:

"The first I heard was when he went up to a man and said, `You are a nice looking bum — you have been a bum all your life;' then he went up to another man, took a cigarette out of his mouth and smoked it, and then as I sat on the end of the seat — he looked like he was coming toward me — and I sat on the end of the seat; I didn't want him to sit with me."

She testified that Gordon had been "cutting up quite a bit, making a lot of noise before that — he was doing like throwing a ball and watching it go around." She further testified that while Gordon was staggering about in the car he suddenly fell over on her and kissed her on the cheek; that during all of the time while Gordon was acting in the manner aforesaid the conductor was there, "saw all that went on, and just simply stood and laughed." It appears that after the assault upon plaintiff by Gordon, at the instance of one Bevington, a passenger, the car was stopped, a police officer summoned, and Gordon was arrested.

Mr. Bevington, a lawyer, called as a witness for plaintiff, testified that he was sitting in the central portion of the car; that some time prior to the assault upon plaintiff, and evidently soon after Gordon entered the car, the attention of the witness was attracted to Gordon by reason of the "commotion" that the latter was making in the rear of the car. The witness said:

"I heard talking that sounded like an Italian and very excited and very loud, and I looked hack and saw this man sitting in a little seat that is in the back platform, going through various stunts and waving his hand as though giving an imitation of an Italian. " * * * He was making such a commotion that occasionally I would turn around and watch his conduct. He was running up and down the back part of the street car and apparently annoying the Passengers. * * * At one stage when I did look around he was picking on a boy appearing to be about 15 years of age, and his language was so rough that the lady in front of me protested. At the time this lady protested I beckoned to the conductor, who was in the back end of the car and seemed to be enjoying everything going on very much, and protested to the conductor against this passenger being allowed to annoy the other passengers in this way. And the conductor thought that he was entirely without authority and said that he had no right to put this man off; that he was a passenger on the car. The next commotion I heard was — he sat down against a man with enough noise to attract attention, and he took a cigarette out of his mouth and began smoking it, and was again using loud and more or less vulgar language. This man then ran up and down the street car going through a baseball performance. * * * I paid no more attention to the man until a short time after we turned on Cass avenue, and he ran up the aisle again, making enough noise to attract me, and I looked around and he was coming very swiftly toward this lady [plaintiff], and stopped directly opposite her seat on the car and fell over on her with enough violence to throw her down,, and I suppose he kissed her — at least, he was trying to get his face against her cheek. He got up and immediately ran back, and by that time this lady was still lying down and had tried to protect herself from this man."

And this witness said that he again went to the conductor and protested "against permitting any such thing as this to occur," and that the conductor said, "Who in the hell is in charge of this ear?" And he further testified that he then demanded that the car be stopped and a policeman called, and that after the car had proceeded a few blocks this was done, and Gordon was taken into custody by an officer.

On cross-examination this witness, referring to Gordon's conduct prior to the assault upon plaintiff, said:

"He would throw himself down in a seat, and if he fell on a passenger he didn't take that into consideration — he did that to three or four passengers."

The defendant, after having offered a peremptory instruction in the nature of a demurrer to the evidence, which was refused, stood upon its demurrer and offered no testimony.

I. The first assignment of error is to the ruling of the court in refusing to peremptorily direct a verdict for defendant. And in support of this assignment it is said that

"Plaintiff was not entitled to recover under the law and the evidence, for the reason that defendant had no reasonable grounds for anticipating and did not know nor did it have an opportunity to know, that an attack would be made on plaintiff; neither did it have an opportunity to prevent the assault by prompt intervention."...