Neuer v. Metropolitan Street Ry. Co.

• Decision Date: 04 April 1910
• Citation: 127 S.W. 669,143 Mo. App. 402
• Parties: NEUER v. METROPOLITAN STREET RY. CO.
• Court: Missouri Court of Appeals

127 S.W. 669

143 Mo. App. 402

NEUER v. METROPOLITAN STREET RY. CO.

Kansas City Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 2, 1910.

1. APPEAL AND ERROR (§§ 987, 994) — REVIEW — WEIGHT OF EVIDENCE.

It is not the duty of the appellate court to weigh the evidence, nor pass on the credibility of witnesses.

2. CARRIERS (§ 318) — ASSAULT ON PASSENGERS — SUFFICIENCY OF EVIDENCE.

In an action for injuries caused by an assault made by a street car conductor on a passenger, evidence held to sustain a verdict for plaintiff.

3. CARRIERS (§ 283) — ASSAULT ON PASSENGER — SELF-DEFENSE — UNNECESSARY FORCE.

Though one person may instigate a combat by insulting language or conduct, still the law does not justify his adversary or the plea of self-defense in the use of unnecessary force, and this rule applies to assaults made by street car conductors on passengers.

4. CARRIERS (§ 283) — ASSAULT ON PASSENGER — SCOPE OF EMPLOYMENT.

A carrier is liable for the acts of its conductor in assaulting a passenger while engaged in the performance of his duty as such, precisely as the conductor himself would be.

5. CARRIERS (§ 282) — ASSAULT BY SERVANTS — RELATION OF PARTIES.

If the relation of passenger and carrier has ceased to exist, the liability of the carrier for the act of the servant in assaulting a passenger no longer exists.

6. TRIAL (§ 260) — REQUESTED INSTRUCTIONS.

Where the court fully covers the case in the instructions given, and the case is not complicated as to matters of law or fact, it is not error to refuse other instructions requested.

7. CARRIERS (§ 319) — ASSAULT ON PASSENGER — EXEMPLARY DAMAGES.

Where the jury were justified in finding that a street car conductor followed a passenger to the steps of a car and struck him with a switch iron while he was in the act of alighting, a proper case for exemplary damages is made out, as such action evinces malice.

8. CARRIERS (§ 315) — ASSAULT ON PASSENGER — PLEADING — EVIDENCE.

Where a petition for damages for an assault by a street car conductor alleges that, as a result of the injury on the head, plaintiff suffered mental derangement, an expert witness may testify that plaintiff's disposition was changed, since a derangement of the mind would necessarily have some effect on the disposition of the person.

9. CARRIERS (§ 319) — ASSAULT ON PASSENGER — EXCESSIVE DAMAGES.

Where a passenger, assaulted by a conductor with a switch iron, received a scalp wound about three inches long that laid bare his skull, and his skull was fractured, resulting in a blood tumor in the eye, in the loss of his memory, and a change of his disposition, and his injuries were permanent, and the assault was vicious and unprovoked, a verdict of $5,000 compensatory damages and $2,000 exemplary damages, is not excessive.

Appeal from Circuit Court, Jackson County; Jas. E. Goodrich, Judge.

Action by Henry C. Neuer against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John Lucas, for appellant. Frank P. Walsh, F. W. Gifford, and E. R. Morrison, for respondent.

BROADDUS, P. J.

This is a suit to recover damages for an alleged assault upon plaintiff by one of defendant's conductors in charge of a car, upon which plaintiff was a passenger on February 7, 1904. Plaintiff's evidence as related by himself was as follows: That he boarded the car in question downtown for the purpose of going to his home. On his way he noticed that a woman sitting near him rang the bell for Twenty-Fifth street. The conductor failed to stop the car. He said she did not ring the bell. She then asked plaintiff if he had not seen her ring the bell. He answered yes. The conductor walked up in the front part of the car and looked like he was angry. When plaintiff got past Thirty-First street he rang the bell and got up from his seat, and told the conductor that he wanted to get off at the next street. The car passed Thirty-First street, at which time plaintiff was standing up waiting for it to stop at Spring street, his place for getting off. Thinking the car would not stop, he said to the conductor he wanted to get off at that street, but the conductor paid no attention to his remark. The plaintiff then said, "I wonder if the motorman knows there is a Spring street here — a street that runs east and west." To this remark the conductor was also silent. Plaintiff then reached up and pulled the rope, and as he did so the conductor grabbed him by the shoulders and pulled him back, which caused the rope to break, and plaintiff fell. He got up and said to the conductor: "Look here, young man, I want to get off the car." The conductor said, "God damn you, get out here." Plaintiff then said, "Never mind, leave me alone — I am going out as soon as the car stops — that is all I want, is to get out." Finally, when the plaintiff walked to the rear part of the car, he noticed that the conductor was following him and "hallooed" at him while he was standing on the platform, "Get out of here, God damn you, get out here." As plaintiff got on the steps of the car backing out the conductor struck him with an iron bar over the head, and he fell to the street. The plaintiff received a serious injury from the blow. A witness by the name of Brillo, who was standing on the street nearby, testified that he saw a man fall off the car, and that he went to the man and saw blood flowing from his face, and saw the conductor with a switch bar in his hand. The defendant's evidence tends to show that the plaintiff brought about the trouble by the use of abusive language to the conductor; that when the car arrived at Thirty-Second street the conductor got out to switch the car by the use of an iron rod, and while proceeding to do so, the plaintiff again applied to the conductor abusive epithets, whereupon he asked him if he intended the remarks for him. The plaintiff said he did, and began approaching him in an angry and threatening manner, when the conductor struck him a blow with the switch rod. The evidence as to who brought on the trouble preponderates much in favor of defendant. The plaintiff recovered judgment for $5,000 compensatory, and $2,000 for exemplary, damages. Defendant appealed.

The first contention of defendant that the court should have sustained its demurrer to plaintiff's case must be denied on the ground that it is not our duty to weigh the evidence or pass upon the credibility of witnesses. While the testimony of plaintiff, in view of the number of other witnesses introduced by the defendant, is greatly overbalanced, yet his version of what occurred was not unreasonable or improbable of itself. Therefore the case does not fall within the rule as stated in Spohn v. Railroad, 87 Mo. 74; Whitsett v. Ransom, 79 Mo. 258; Garrett v Greenwell, 92 Mo., loc. cit. 125, 4 S. W. 441.

The principal contention of defendant is that plaintiff's first instruction should not have been given. It is as follows: "(1) The court instructs the jury that the defendant owed to plaintiff while he was a passenger the duty to use the highest degree of care reasonably practicable to protect him from assault or violence, if any, and not to assault or strike him through its conductor in charge of said car; if, therefore, you believe and find from the evidence, that on the 7th day of February, 1904, plaintiff was a passenger upon the car of the defendant in question, and that while he was on said car, or was in the act of alighting from said car, or before he had alighted therefrom in safety, as explained in another instruction, he was struck and assaulted by the conductor in charge of said...