Malecek v. Tower Grove & Lafayette Ry. Co.

• Citation: 57 Mo. 17
• Parties: JACOB MALECEK, Appellant, v. TOWER GROVE AND LAFAYETTE RAILWAY COMPANY, Respondent.
• Decision Date: 31 March 1874
• Court: United States State Supreme Court of Missouri

57 Mo. 17

JACOB MALECEK, Appellant,

v.TOWER GROVE AND LAFAYETTE RAILWAY COMPANY, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Bakewell & Farish, for Appellant.

E. B. Sherzer, for Respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action on the case founded on a breach of duty by the defendant as a common carrier, in carrying the plaintiff as a passenger on its street railroad car.

The petitioner alleged that the defendant was a corporation engaged in the business of carrying persons, as passengers, from one point to another in the city of St. Louis, as a common carrier; that on the 20th of February, 1872, the defendant was running its cars from Fourth Street to Tower Hill, within the limits of the city of St. Louis; that on said day the defendant undertook, as a common carrier, to convey plaintiff carefully for hire on said railroad cars, and after the plaintiff entered the car and paid his fare by depositing his ticket in the ticket-box, as required by the regulations of defendant, the driver, being the conductor, in language coarse and grossly insulting, called upon the plaintiff to put in his fare, denied that plaintiff had deposited his ticket, charged him with attempting to avoid the payment of his fare, and with having done the same thing before, and threatened to put him out, and thereupon stopped his car, and rushed at plaintiff, grasped his arm, which was broken at the time and in a sling, raised him from his seat, and abused and villified the plaintiff with coarse, indecorous and profane language, calling him a swindler, etc.; that this assault was continued off and on for fifteen or twenty minutes; that there were many passengers in the car; that the plaintiff was old and at the time in feeble health, having recently broken his arm; that he had neither said nor done anything to provoke the insults; that the defendant was immediately notified of the misconduct of the driver and conductor, but instead of discharging him, retained him in his place.

The plaintiff, by reason of the premises, claimed damages in the sum of five thousand dollars.

The defendant by its answer, denied all the material allegations of the petition, and set up as a defense, that the plaintiff had not paid his fare as alleged, and that the driver reminded him of the neglect, but used no abusive epithets, and gently took his arm, but on being informed by him that his fare had been paid, desisted, etc.

The case was submitted to a jury, and resulted in a verdict and judgment for five hundred dollars in favor of the plaintiff. On appeal to the General Term, the judgment was reversed and the cause remanded. From this judgment of reversal the plaintiff has appealed to this court.

On the trial at Special Term, the plaintiff gave evidence strongly tending to prove all the material allegations of his petition. The evidence conduced to show that the insults and threats of the conductor were kept up till they arrived at a station where the conductor was changed, and he gave the reins to another driver. But the first driver still remained in the car and continued to abuse and insult the plaintiff. To the introduction of the evidence touching the insults and acts of the driver, after he had been relieved by the second driver, the defendant objected but the court overruled the objection and the defendant excepted.

About three days afterward, plaintiff went to a man named Buell, who was in the employment of defendant, and its superintendent, having charge of the cars, and was going to say something to him, and the latter told him to “hush up,” that he had directed the drivers to throw him out of the car, remarking, that the plaintiff did not pay. This conversation with Buell was objected to by the defendant, but was admitted as evidence, and the defendant excepted.

The defendant's driver, on the part of the defendant, testified that plaintiff failed to put in his ticket, and on that account he threatened to put him out-- used no abusive language, and gently took his arm, but let it go and desisted from further action, after being told by some one he had put in his ticket.

The evidence was contradictory as to whether plaintiff had put his ticket in the box.

At the instance of the plaintiff, the court gave the following instructions to the jury, to which the defendant excepted:

“1st. If the jury believe from the evidence, that the plaintiff was a passenger on the car of defendant, and had duly paid his fare, and that the agent and employee of defendant being then engaged in his business as conductor and driver of said car, threatened to put plaintiff off the said car on the ground that his fare was...