Parris v. Deering Southwester Ry. Co., No. 2180.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Farrington
• Citation: 203 Mo. App. 182,208 S.W. 97
• Parties: PARRIS v. DEERING SOUTHWESTERN RY. CO.
• Decision Date: 18 January 1919
• Docket Number: No. 2180.

208 S.W. 97 203 Mo. App. 182 PARRIS
v.
DEERING SOUTHWESTERN RY. CO. No. 2180. Springfield Court of Appeals. Missouri. January 18, 1919.

Appeal from Circuit Court, Pemiscot County; S. H. McCarty, Judge.

Action by W. H. Parris against the Deering Southwestern Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

C. G. Shepard, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

[208 S.W. 98]

FARRINGTON, J.

The plaintiff, appellant, instituted suit against the defendant, alleging that he was a passenger on one of defendant's trains, and that he boarded the same at Ward avenue, in the city of Caruthersville, Mo., and shortly after the train started to move the conductor in charge of the train willfully, maliciously, and wantonly assaulted plaintiff without any cause or provocation on the part of plaintiff; that at the time he was assaulted plaintiff's back was turned to the conductor, and he had no knowledge there was an assault about to be made upon him; that he struck him several times over the head with a "billy," causing severe and lasting wounds on and about his head. Judgment was asked for $1,000 compensatory damages and $5,000 exemplary damages.

The answer of the defendant denies that the conductor in charge of the train willfully, maliciously, and wantonly assaulted plaintiff, and, further answering, charges that plaintiff was at the time on said train, was drunk and disorderly, and was using loud, boisterous and indecent language in the presence of the passengers on said train, that the conductor, as was his duty, tried to quiet the plaintiff, and asked him to sit down and be quiet, but plaintiff refused, and continued his loud and boisterous conduct, to the annoyance and disturbance of the passengers, and at the same time had a large pocketknife, and that no one could make him sit down, and that, without provocation or cause, the plaintiff struck the defendant, who thereupon struck plaintiff, causing his alleged injury, and that the striking by the conductor was done under the necessity of self-defense, and that no more force was used than was necessary, and that all of it took place while the conductor was endeavoring to quiet plaintiff and cause him to sit down and cease his disturbance.

There was a trial by a jury, which rendered. a verdict in favor of the defendant.

The plaintiff, appellant, merely complains of certain instructions given. It is conceded that there was evidence to sustain both the claim of the plaintiff and the defense of the railroad company. The appellant therefore merely brings the record proper and the instructions complained of to this court for review. The error complained of is contained in several of the instructions, but especially predominates in instruction No. 2, given on behalf of the defendant, which is as follows, we having italicized that portion complained of by appellant:

"You are further instructed that, if you find and believe from the evidence in this case that the plaintiff took passage on defendant's train as testified to in this case, and that the plaintiff was rude and...