Mitchell v. United Railways Company

• Decision Date: 14 May 1907
• Citation: 102 S.W. 661,125 Mo.App. 1
• Parties: MITCHELL, Respondent, v. UNITED RAILWAYS COMPANY, Appellant
• Court: Missouri Court of Appeals

102 S.W. 661

125 Mo.App. 1

MITCHELL, Respondent, v. UNITED RAILWAYS COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 14, 1907

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.

REVERSED AND REMANDED.

STATEMENT.--On December 16, 1904, plaintiff was a passenger on one of defendant's cars traveling north on Broadway, in the city of St. Louis. He got into an altercation with a conductor on the car, by whom he was assaulted. The action is to recover compensatory and punitive damages for the assault. The answer was a general denial.

It appears there were two conductors on the car, one a new man whom the other was "breaking in." The new man was collecting fares and the other was attending to the bell giving signals to start and stop the car. Plaintiff did not know there was more than one conductor on the car and supposed there was but one. He took a seat near the front end of the car and when the conductor came around collecting fares, plaintiff testified he handed him a twenty-five cent piece (the fare was five cents), and the conductor undertook to hand him two dimes in change by dropping them into his hand. One of the dimes fell on the floor; the conductor looked for it, and then went to back end of the car. Plaintiff testified he looked for the dime but could not find it. In a short time the other conductor came through the car. Supposing him to be the one who collected his fare plaintiff stopped him, and testified to the following conversation "I said: 'Look-a-here, my friend, you owe me a dime,' He says, 'Owe you a dime? For what?' Said I: 'Didn't I give you a quarter and you gave me back twenty cents?' He said, 'No, you didn't pay your fare.' Said I: 'What do you say?' He says, 'You didn't pay your fare.' Said I: 'If you say so again, you lie.' That is what I said, plain English. And with that he hauled off and struck me a violent blow in the right eye. . . After he struck me I got up and tried to defend myself. I pushed him across the car and he pushed me back in the seat that I came from, and by that time we got pretty nigh--I should judge pretty near to Salisbury street." Plaintiff had his eye dressed at a nearby dispensary. He testified that his eye hurt him and he could not see out of it, and the evidence shows it was badly swollen and was black for two or three weeks. Plaintiff was seventy-six years old but was able, as he stated, to push the conductor down between two seats with force sufficient to break the glass out of the adjoining window. The following appears in plaintiff's cross-examination:

"Q. Now, isn't it a fact that this conductor said to you, 'I didn't collect your fare?' A. No, sir. If he had it would have settled it right there, but he never give me no chance.

"Q. Didn't he tell you that he didn't collect your fare? A. No, sir; he did not. If he had, it would have been settled right there. He never give me any chance to tell whether it was him or the other conductor. There were two conductors on the car. I never knew there were two. That is where they got it confounded right there. . . .

"Q. You don't know whether it was the new man or the old man? A. Or the old man, no, sir. I didn't know them and didn't know there were two on the car.

"Q. You didn't know there were two on the car at that time? A. If they had told me that, the thing would have been settled, there would have been no trouble.

"Q. Now, isn't it a fact that the conductor you demanded the change of told you he didn't collect the fare from you? A. There was one of them told me he didn't collect fare from me.

"Q. And when he said that didn't you tell him he was a 'God damn liar?' A. No, sir; I didn't call nobody a 'God damn liar.' I said, 'If you say that again you are a liar.' That's what I said.

"Q. Well, didn't you say, 'If you say you didn't collect my fare, you are a God damn liar?' A. No, sir.

"Q. Now, you were arguing there about that fare for quite awhile, weren't you? A. About what fare?

"Q. You and the regular conductor with the uniform on? A. Arguing about the fare?

"Q. About the change? A. You mean the dime that was lost on the floor.

"Q. Yes, I say you had quite a little argument about that before you got into the fight? A. I said, 'My friend you owe me a dime.' He says, 'For what?' I says, 'Didn't I give you a quarter and you give me back twenty cents?' He says, 'No, you didn't,' in a kind of slurring manner. He says, 'You didn't pay me no fare.' I said, 'If you say so again you lie.' That's all there is about it.

"Q. Now, that conductor was right, wasn't he? A. I don't know whether he was right or not. He wasn't right in striking me.

"Q. You didn't know whether he was right or not but still you called him a 'God damn liar?' A. I didn't say that. I never said that."

George Hank, the conductor who collected plaintiff's fare, in respect to making the change, said: "I just took the two dimes out of my changer and reached down and laid them in his hand, and one of them dropped down and I reached down and picked it up and gave it back to him, and before I could get away he dropped another one. I had several fares to collect back in the car and I went right on about my business." Witness gave the following version of the difficulty: "The conductor went out on the front end to tell the motorman to stop at Salisbury street until we could get a bucket of fuel, and as he came back in, why the gentleman over there took hold of him somewhere by his coat and says, 'You owe me a dime;' and the conductor says, 'I didn't collect your fare. I don't owe you any dime, he says, 'You owe me a dime,' The conductor says, 'I didn't collect your fare.' He says, 'You are a God damn liar.' He says, 'You owe me a dime and I'm going to have it.' Well, the conductor, he walked on back, didn't try to interfere at all, walked on back toward the stove, and the old gentleman just kept cursing him, and the conductor started on back up toward where the old gentleman was, and he told him, 'Now, you will have to be quiet and not carry on such language in the car.' And the old gentleman got up and started to rush at the conductor, and the conductor put his hand on him to hold him in the seat, and he got up in the aisle and knocked the conductor off his feet between two seats and knocked a window light out. The conductor got to his feet then and shoved him between two seats and knocked a light out on the other side with the old gentleman. By that time the motorman stopped the car and called a policeman, and the policeman came in and put the old gentleman under arrest."

Alexander Mocobey, the conductor with whom the difficulty was had, testified as follows in regard thereto: "At Buchanan or Anglerodt I went to the motorman and told him to stop at the barns to get some fuel, and coming back through the car this man Mitchell stopped me and said he gave me a quarter and I gave him a dime, I owed him another dime, he ought to get twenty cents. I says, 'Why, man, I am not collecting any fare. How do I owe you any money?' He says, 'Yes you collected my fare.' He says, 'I want twenty cents;' that I owed him ten cents yet. And I says, 'Why, man, how can I owe it to you?' He says, 'I don't give a God damn.' He says, 'I gave you a quarter.' He says, 'You are a liar, and a God damn liar, if you say you didn't collect my fare.' I walked away and he kept using that language, and Mr. Wintuskey told him he had to stop using such language."

Witness continued as follows:

"Q. Well, don't tell what Mr. Wintuskey said to him. Go ahead and tell what you did? A. Well, he kept using such vile language in the presence of the passengers, and I went to him and told him he had to stop using such language in the presence of passengers--women and children.

"Q. Did he stop when you went and told him? A. No, sir; he didn't.

"Q. Then what did you do? A. Then I went and told the motorman to stop and call on an officer and have him locked up.

"Q. Then what took place? A. Well, then, coming back through the car from the door, after I instructed the motorman to stop for an officer, why this man Mitchell says, 'Say, God damn you,' he says, 'I want my dime.' I says, 'I am not collecting any fares. You will have to keep quiet now.' I says, 'Stop using such language, or I'll put you off the car.'

"Q. Then what did he do? A. Then I put my hand out this way (indicating) to put my hand on his shoulder to tell him to get up and get off, and he threw his foot to kick at me and I pushed both knees down. He made the second attempt and I did the same thing. He managed to get up on his feet before I expected him to and he struck me here (indicating) and threw back in the seat, breaking a pane of glass. Well, I managed to get up on my feet in time to defend myself and struck him, I believe, here in the shoulder and knocked him back in his seat and he broke a pane of glass.

"Q. Do you know what part of his body he struck the window with? A. Why, I think by his falling back this way, his shoulder, I think his back struck the glass. So by that time while the scuffle was going on, we run to Mallinckrodt or Salisbury, where the car stopped and the officer came on. I told the officer to lock this gentleman up for disturbing the peace, using vile language there in the car in the presence of passengers."

Mocobey's evidence was corroborated by that of a motorman of defendant who sat in a seat near plaintiff.

The court gave the following instructions for plaintiff:

"2. The court instructs the jury that if you believe and find from the testimony and all the facts and circumstances in evidence and to your reasonable satisfaction, that on or about the sixteenth day of December, 1904, the plaintiff was a passenger on one of defenda...