Olive v. United Railways Company of St. Louis
| Decision Date | 06 March 1917 |
| Parties | HAL L. OLIVE, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
AFFIRMED.
Judgment affirmed.
Boyle & Priest, Morton Jourdan and T. M. Pierce for appellant.
The court erred in submitting the case to the jury, since the respondent failed to prove that the appellant was operating the car at the time he was attacked, and the respondent failed to prove that the conductor and motorman were in the employ of the appellant at the time. Reisenleiter v Railroad, 155 Mo.App. 89; Muehlebach Brewing Co. v Dunham, 177 S.W. 1067; Frisby v. Transit Co., 214 Mo. 567.
This is an action to recover damages for an assault alleged to have been committed upon plaintiff by defendant's servants in charge of a street car operated by defendant, in the city of St. Louis, upon which plaintiff was a passenger. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff for $ 250 actual damages and $ 250 punitive damage, and the case is here on defendant's appeal.
On May 5, 1912, plaintiff with some companions boarded an "Olive Street Car," at Sixth and Olive streets in the city of St. Louis, and stood upon the rear platform thereof. Shortly thereafter a dispute arose between plaintiff and the conductor of the car regarding the payment of fare. Plaintiff thereupon went within the car, for the purpose, according to his testimony, of making an explanation to the conductor--and was assaulted by the conductor, or by both the conductor and the motorman, and was ejected from the car. And there is evidence that plaintiff was further assaulted and beaten after being removed from the car. The conductor, testifying as defendant's witness, admitted that he assaulted plaintiff after the latter went within the car. He testified that upon signalling the motorman to stop the car in order to eject plaintiff, some one on the rear platform struck him through an open window, whereupon he struck plaintiff, felling him to the floor of the car, and ejected him.
It is unnecessary to state the evidence in more detail, for the only assignment of error before us is that the trial court erred in submitting the case to the jury for the reason that plaintiff failed to prove that defendant was operating the car upon which plaintiff was assaulted or that the conductor and motorman thereof were in defendant's employ at the time.
It is true that it should appear, either directly or by reasonable inference, that the car was being operated by the defendant and that the conductor and motorman were in its employ. But on the record before us we are convinced that appellant's contention that the judgment should be reversed, on the ground stated, cannot be sustained.
In support of appellant's contention we are referred to: Frisby v. Transit Co., 214 Mo. 567, 113 S.W. 1059; Muehlebach Brewing Co. v. Dunham, 177 S.W. 1067; Reisenleiter v. United Rys. Co., 155 Mo.App. 89, 134 S.W. 11. These cases, we think are not controlling here. In Frisby v. Transit Co., supra, plaintiff suffered a nonsuit at the close of his case, and consequently defendant introduced no testimony. In Reisenleiter v. United Rys. Co., supra, defendant stood upon its demurrer to the evidence, interposed at the close of plaintiff's case. In Muelhebach Brewing Co. v. Dunham, supra, it does not appear from the opinion that defendant introduced any evidence; but in any event the case is distinguishable from that before us. In none of these cases, it seems, did anything appear either directly or inferentially tending to connect the defendant with the negligent act charged. Nor does it appear in any of them that the defendant tried the case upon the theory that its ownership of the car was not a controverted question at the trial.
In Lackland v. United Rys. Co., recently decided by this court, not as yet published, the defendant stood upon its demurrer at the close of plaintiff's case. Plaintiff prevailed, but the court sustained defendant's motion for a new trial. On appeal we held that the ruling below could not be disturbed; that the motion could properly have been sustained on the ground that the case should not have been submitted to the jury for the reason that nothing, directly or inferentially, appeared tending to show that the defendant operated the car in question.
In the case before us defendant did not stand upon its demurrer, but proceeded to put in its defense, and called as witnesses the conductor and motorman of the car who testified at length as to the circumstances surrounding the assault upon plaintiff. And defendant offered instructions based upon the theory that the conductor was justified, under the circumstances shown in evidence, in using such force as he did...
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