McDonald v. St. Louis & S. F. R. Co.

• Decision Date: 02 April 1912
• Parties: McDONALD v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

146 S.W. 83

McDONALD v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

1. CARRIERS (§ 244) — CARRIAGE OF PASSENGERS—PASSENGERS.

Where plaintiff boarded one of defendant's freight trains, and secured permission to ride by giving the conductor an amount less than the regular fare, no relation of passenger and carrier was raised between plaintiff and the defendant railroad.

2. CARRIERS (§ 282) — CARRIAGE OF PASSENGERS—DUTY OF CARRIER.

Where there was no relation of carrier and passenger between the defendant railroad company and plaintiff, who was riding on its train with consent of its conductor, the railroad company was bound to exercise only ordinary care for plaintiff's safety.

3. CARRIERS (§ 352)—OPERATION — INJURIES TO TRESPASSER.

Where plaintiff was riding on one of defendant's trains with consent of its conductor, the railroad was liable for the wrongful acts of its servants committed within the scope of their authority in ejecting plaintiff; such liability resting upon the law of agency, wholly irrespective of the relation of carrier and passenger.

4. CARRIERS (§ 381)—OPERATION — INJURIES TO TRESPASSER—EVIDENCE.

In an action by one injured by the servants of a railroad company, evidence held to show that at the time the assaults were begun the servants of the company were acting within the scope of their authority in ejecting plaintiff.

5. CARRIERS (§ 365)—OPERATION — INJURIES TO TRESPASSER.

Where plaintiff, who was riding on one of defendant's trains, was assaulted by those of defendant's servants, who ejected him, the railroad company was liable for further assault made after the ejection; it appearing that the assaults were begun while the servants were acting within the scope of their authority.

6. CARRIERS (§ 383)—OPERATION — INJURIES TO TRESPASSER—QUESTION FOR JURY.

Whether or not the first assault upon one who was ejected from a railroad train was begun by the railroad company's servants while acting within the scope of their employment may not be determined as a matter of law, but should be submitted to the jury.

7. CARRIERS (§ 384)—OPERATION—INJURY TO TRESPASSER—INSTRUCTIONS.

In an action by one assaulted by the servants of a railroad company, who ejected him from one of the company's trains, where plaintiff's evidence tended to show that the assault was begun when he was ejected, and the company's evidence was that the assault was not made until after the ejection, an instruction that the railroad company was liable if its servants assaulted the plaintiff at or immediately after he left the train was misleading in authorizing a recovery, even though the assault was not commenced while defendant's servants were acting within the scope of their employment.

8. CARRIERS (§ 384)—OPERATION—INJURY TO TRESPASSER—INSTRUCTION.

In an action against a railroad company for assaults made upon plaintiff by its servants who ejected him from a train, an instruction that if the servants of the railroad company ejected plaintiff from the train, and in doing so, or immediately thereafter, wrongfully assaulted him, was not objectionable, for the words, "and immediately thereafter," require the finding that the assault was commenced during the process of ejection, and while the servants were acting within the scope of their authority.

9. TRIAL (§ 252) —INSTRUCTIONS — SUPPORT IN EVIDENCE.

In an action by plaintiff, who, in being ejected from a train, was assaulted by the servants of a railroad company, where there was no evidence that the conductor in any way assaulted plaintiff, an instruction that if the conductor, while acting within the scope of his authority, used improper means in ejecting plaintiff and continued such wrongful acts and assaults after he was ejected, was improper.

10. DAMAGES (§ 144)—PERSONAL INJURIES— PLEADING.

Compensation for loss of time occasioned by an assault and battery is an item of special damages, which cannot be recovered unless prayed for in the petition.

11. DAMAGES (§ 210)—PERSONAL INJURIES— INSTRUCTIONS.

In an action for assault and battery, where the petition claimed a certain sum as expended for medical attendance, an instruction authorizing a recovery for the reasonable value of necessary medical aid is improper, because failing to limit the amount of the recovery.

12. TORTS (§ 22)—JOINT TORT-FEASORS—LIABILITY.

A joint tort-feasor is liable for the joint tort of all.

13. CARRIERS (§ 364)—OPERATION — LIABILITY.

Where plaintiff, after being ejected from a railroad train, was assaulted by the company's servants and others, the railroad's liability depends solely upon whether its servants commenced the assault while acting within the scope of their authority, and whether they failed to use ordinary care in ejecting plaintiff, but the company is not liable because its servants who, by the exercise of ordinary care might have protected plaintiff, failed to do so.

14. PLEADING (§ 237) — AMENDMENT — ALLOWANCE.

In an action against a railroad company, where the petition suggests a breach of the obligation which a carrier owes the passenger, and the proof merely shows that the servants of the railroad company wrongfully assaulted plaintiff, who was not a passenger, the petition may be amended to conform to the proof.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Ranney, Judge.

Action by Charles McDonald against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the willful and wanton conduct of defendant's servants in ejecting him from its train and immediately thereafter. Plaintiff recovered in the amount of $6,010, and defendant prosecutes the appeal.

Plaintiff is a colored man, and that he was subjected to an outrageous assault at the hands of defendant's brakeman all of the evidence tends to prove. But, though such be true, much of the evidence for him and all of that for defendant tends to prove as well that the real injuries were not inflicted upon him until after he had left the train and repaired to a nearby residence. However this may be, plaintiff is entitled to the full benefit of his version of the matter, and we therefore set forth his testimony in full.

In his own behalf, plaintiff testified as follows:

"Have lived in Cape Girardeau about seven years. During that time have worked at various kinds of common labor. Worked for Mr. Hely, and made 20 cents an hour; $2 or $3 a day at that. Worked for Mr. Matteson at $1.75; on the streets at $2 a day; don't make anything now. On March 8, 1910, I was at the passenger station in Cape Girardeau, Mo., when the passenger train came in. It stood there awhile, and left, and then the local came, and the conductor stepped off of the caboose of the local and went into the depot. I walked to the door before he came out, and stood there, waiting for him. He had two little yellow pieces of paper in his hand, and I said, `Say, Boss, I want to go to Crystal City with you. I have got a little money, and didn't have enough to pay my way on the passenger train, and I thought I would pay you on the local.' He asked me what I was going up there for, and I said: `I am going up there to work. I have a little money.' He says: `How much have you got?' And I said: `I have 75 cents. I will give you whatever you say to let me go.' And he said: `All right, hand me a quarter, get right in that car next to the caboose, and I will see that you get out at Crystal City' —so I went around and got my bundle, and got into the train, and commenced talking to the boys, and told them I was going to Crystal City, and, after a while, the train pulled out, and I was well satisfied, and sat down a while. Both doors of the car I got in were wide open from one side to the other, only the back window next to the caboose had a little strip nailed over it. When they got to Bainbridge all was all right with me, and it seemed like they were putting out a hot box, and they passed by me, and I was right there in the door, looking at them, and the man who took the number of the cars came around, and I said, `Good evening,' and he said, `Good evening,' and after a while they got through, and this little brakie, Allison, came by and waved his hand at me, and I waved, too, and Allison got in the train, and the train pulled out. When we got about half way between Bainbridge and Neely's Landing Allison came to the back window next to the caboose, and knocked, and said, `Open up this window,' and I said, `All right, sir,' and went there to open it up and I saw where it was nailed, and said, `This window is nailed,' and he said `Pull it loose,' and I said, `All right,' and pulled it loose, and he climbed on some steps, and tried to get in, and said, `You want to catch hold of here.' I knew I had paid my way, and thought he just wanted to get in and talk with me, and I got hold of his hand, and helped him in. I asked the other fellow, `Do you want to come in?' and he shook his head, and said, `No; I don't want to come in'; and he looked at me and I commenced talking to him, and he said, `Have you got any money?' and I said `No, sir.' I got kind of scared then, and was facing the one at the window, and the other one pushed me in the neck with his pistol, and I looked back and jumped and said, `I ain't done nothing'—thought he was going to kill me right away. He says, `I know you ain't. Throw your ____ hands up.' I threw them up, and he searched me with one hand, and held the pistol right there. He could not find anything. I had half a dollar in my pants pocket, but he searched me all over, and didn't find it. He says: `This black ____ ain't got nothing. I am going to make him jump out of this car.' I says: `I ain't done nothing. I have paid that man to go. I paid that conductor to go. What do you want to make me jump out for?' The door of the...