McDonald v. St. Louis & San Francisco Railroad Company

• Decision Date: 02 April 1912
• Parties: CHARLES McDONALD, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

146 S.W. 83

165 Mo.App. 75

CHARLES McDONALD, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 2, 1912

Appeal from Cape Girardeau Court Common Pleas.--Hon. R. G. Ranney Judge.

REVERSED AND REMANDED.

STATEMENT.--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 $ 6010 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 near-by 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 twenty cents an hour; two dollars or three dollars a day at that. Worked for Mr. Matteson at one dollar and seventy-five cents; on the streets at two dollars a day don't make anything now. On March 8, 1910, I was at the passenger station in Cape Girardeau, Missouri, 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 seventy-five 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 awhile 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 awhile 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 aint, 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 a half 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 caboose was open and I said, 'Holler in and ask him if I didn't pay him,' he said, 'I ain't going to ask him nothing, you ---; you didn't pay me. You think I won't make you jump out,' and he shot down twice right at my leg, and I jumped back. I had my hands up and he said, 'Poke them up, you , I am going to shoot you right out of the car.' I says, 'I ain't done nothing,' just as he went to throw the gun down. I was right at the door and the train was running. He threw the gun down to shoot me and I threw my hand on it and snatched it up and it shot over his head when I took the gun. He says, 'Please don't kill me,' and I said, 'I don't want to kill you; get out of the car.' The other brakeman and conductor and all of them were standing there and looking right at me. I says, 'Get on out, I am not going to kill you,' and he backed up to the window and said 'You will kill me if I turn around,' and I said, 'No' and put the pistol in my overcoat pocket, and he turned around and got out and said, 'Now you got to give me my gun,' and I said 'No, I won't give you this gun' and he said, 'You will give it to me, you ,' and I went to the door next to the river as quick as I could and looked back and that fellow had a gun just this way ready to shoot, then I went to the other door and the brakie on that side was holding a gun, and by that time the train commenced to slow up at the station, and both men jumped off on each side and then the conductor that I paid came to the car where I was and called to me and said, 'Come here, you old , here is your quarter; light, drop out,' and I said, 'I thought I paid you to Crystal City,' and I dropped out, and as I stepped down this fellow gave me a punch and hit me right back of the neck, and I went over to Mr. Fulbright's wife who was standing in the door, and said, 'Will you telephone to the Cape for me, please ma'am,' and just as I said that Allison fired at me twice, and shot me twice all up and down my back, and I fell, and when these men shot this woman yelled and went back in the house and shut the door. I fell sloping and went right back behind that house, and up side that big bluff, and they were shooting at me and crying, 'Don't let him get away; kill him, kill him,' and I ran to the big bluff and got stuck and couldn't get any further, and the brakeman that had the shotgun shot me again in the shoulder, and I fell and turned and came right back to him, and they commenced shooting at me and I ran by them, and this brakeman cut down at my legs and missed me and I ran around to the door of this woman's house and said, 'Please, ma'am, don't let him kill me.' I looked to see if I could get under the house, but couldn't. They rushed around on me and this fellow throwed up his gun to kill me and said, 'What are you doing, your old soul,' I says, 'Don't kill me, I am just trying to save myself.' The conductor that paid me had a shotgun, and the brakeman Allison had a single barrel shotgun, and the tall brakie that was at the door had a Winchester, and one or two of the citizens up there, and they had me there with my hands right behind the door, and this woman was standing at the door hollering, 'Don't let him in here, don't let him in,' and I was standing there begging, 'Please don't kill me,' and they were knocking and hitting me all across the head. The two citizens held me and one of the brakies, Allison, got a big stick and commenced beating me right in the back, and the other were punching me in the back with a gun, and they yelled, 'Kill him on his feet; kill him right here,' and Mr. Fulbright said, 'Don't kill him right besides my house, take him out from my house,' and they took me out from the house a short distance and held me, juggling me back and forth, and the two brakies were hauling off and hitting me, and Allison was kicking me some, so hard I fell down. They marched me around the house and someone yelled, 'Lynch him, don't let him say a word,' and I said 'O Lord have mercy' and Allison said, '--- you, ought to have called on him when you came up here; Lord can't do you any good now, we have got you. Taking my gun, you .' I had my hands up and he whaled me across the head again. The brakeman and the heavy-set fellow I paid had me, too, all of them but the engineer and fireman. They were marching me around in front of the engine and they stood me there about five minutes and beat me awhile, and Allison, the brakeman, said '---, don't kill him here, take him to the railroad; I feel like shooting him,' and someone said, 'Hold Allison, don't let Allison shoot.' He was crying, 'Let me get him.' He commenced shooting, had his shotgun and they pushed me a ways and this time they let him. I was doing my best, shot up and couldn't see much, but I was ducking and running just as hard as I could with both hands up trying to get back down the railroad to Cape, and I got down the railroad about half a mile near a tool house and two cars standing on the railroad, and they commenced shooting at me with Winchesters and I...