Parris v. Deering Southwestern Ry. Co., No. 2692.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtFarrington
Citation227 S.W. 1071
PartiesPARRIS v. DEERING SOUTHWESTERN RY. CO.
Docket NumberNo. 2692.
Decision Date14 February 1921
227 S.W. 1071
PARRIS
v.
DEERING SOUTHWESTERN RY. CO.
No. 2692.
Springfield Court of Appeals. Missouri.
February 14, 1921.

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

[227 S.W. 1072]

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

Ward & Reeves, of Caruthersville, for appellant.

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

FARRINGTON, J.


This case is here on second appeal, the plaintiff recovering a judgment in the trial court. In an opinion on the former appeal, reported in 208 S. W. 97, the facts of the case are stated, to which we refer for such facts as are not disclosed in the discussion following.

The suit is for damages on account of an alleged assault and battery claimed to have occurred on defendant's railroad by a conductor of a train operated by the defendant on which train the plaintiff was riding as a passenger. The evidence in this case is very conflicting, that of plaintiff to the effect that he was unlawfully, wrongfully, and maliciously assaulted and beaten by defendant's conductor while a passenger, and the evidence of the defendant, the conductor, and a number of witnesses testifying that the assault was justified on the ground that the plaintiff first struck and assaulted the conductor, and what followed was merely the defense of the conductor of his person, and that in making such defense the licks which were inflicted upon the plaintiff by a "billy" which was in the hands of the conductor was the use of no more force than appeared to be reasonably necessary under the existing conditions ` for self-defense. The petition sought damages in the sum of $1,000 actual and $5,000 punitive damages. The verdict of the jury assessed the actual damages at $100 and the punitive damages at $200, and it is from a judgment rendered upon this verdict that the appeal is lodged here.

The points relied upon for reversal are that there are errors in the instructions given on behalf of the plaintiff; that there was _improper evidence admitted and proper evidence excluded by the trial court; that the trial court erred in permitting the plaintiff to introduce testimony in rebuttal which was no proper rebuttal testimony, but rather testimony which should have been introduced, if at all, in chief; and, lastly, that the trial court erred in making prejudicial remarks during the course of the trial.

The first ground of error made as to instruction No. 1 is that it required the conduct of the plaintiff to be such as to be reasonably and apparently necessary to the jury (italics ours) that the conductor struck plaintiff to defend himself, when it should only be apparent and necessary to the conductor at the time. The instruction is not subject to the criticism. Besides, defendant's instructions Nos. 2 and 4 make very clear the law governing this feature of the case, if it is at all obscure in the plaintiff's first instruction. A further objection to this instruction is that it required the conductor to use no more force than was reasonably necessary to protect himself, when the law permitted him to use whatever force appeared to him (italics ours) to be reasonably necessary. In the first place, an answer to this instruction is that the instruction is drawn in the identical language of the answer filed by the defendant in this case; and, second, similar instructions have been approved in the following cases: Norris v. Whyte, 158 Mo. 20, 57 S. W. 1037; Neuer v. Met. St. Icy. Co...

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3 practice notes
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...Garvin, 272 S.W. 108, 219 Mo. App. 162; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 171 S.W. 979, 185 Mo. App. 43. (11) (a) The power to take judicial notice is to be e......
  • Boillot v. Income Guar. Co., No. 19236.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...Garvin, 219 Mo. App. 162, 272 S.W. 108; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 185 Mo. App. 43, 171 S.W. 979; (11) (a) The power to take judicial notice is to be e......
  • Davis v. Terminal R. Ass'n of St. Louis, No. 45367
    • United States
    • United States State Supreme Court of Missouri
    • December 10, 1956
    ...646, 654, 147 S.W. 541, 544. 2 Lehman v. Lambert, 329 Mo. 1147, 1153, 49 S.W.2d 65, 68; Parris v. Deering Southwestern Ry. Co., Mo.App., 227 S.W. 1071, 1072-1073; Johnson v. Daily, 136 Mo.App. 534, 538, 118 S.W. 530, 531(2). See also Berryman v. Southern Surety Co., 285 Mo. 379, 396, 227 S.......
3 cases
  • Boillot v. Income Guar. Co., No. 19139.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...Garvin, 272 S.W. 108, 219 Mo. App. 162; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 171 S.W. 979, 185 Mo. App. 43. (11) (a) The power to take judicial notice is to be e......
  • Boillot v. Income Guar. Co., No. 19236.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 1938
    ...Garvin, 219 Mo. App. 162, 272 S.W. 108; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 185 Mo. App. 43, 171 S.W. 979; (11) (a) The power to take judicial notice is to be e......
  • Davis v. Terminal R. Ass'n of St. Louis, No. 45367
    • United States
    • United States State Supreme Court of Missouri
    • December 10, 1956
    ...646, 654, 147 S.W. 541, 544. 2 Lehman v. Lambert, 329 Mo. 1147, 1153, 49 S.W.2d 65, 68; Parris v. Deering Southwestern Ry. Co., Mo.App., 227 S.W. 1071, 1072-1073; Johnson v. Daily, 136 Mo.App. 534, 538, 118 S.W. 530, 531(2). See also Berryman v. Southern Surety Co., 285 Mo. 379, 396, 227 S.......

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