Parris v. Deering Southwestern Ry. Co.

• Decision Date: 14 February 1921
• Docket Number: No. 2692.,2692.
• Citation: 227 S.W. 1071
• Parties: PARRIS v. DEERING SOUTHWESTERN RY. CO.
• Court: Missouri Court of Appeals

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. 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., 143 Mo, App. 402, 127 S. W. 669; Ickenroth v. St. Louis Transit Co., 102 Mo. App. 597, 77 S. W. 162; Johnson v. Daily, 136 Mo. App. loc. cit. 537, 118 S. W. 530.

The criticism to instruction No. 3 is based upon a reliance on a quotation made in the opinion in the former appeal here in which we quoted from Hutchinson on Carriers, as follows:

"If the passenger assaults the servant of the carrier, the latter has a right to defend himself; and if, in a personal combat between the two brought on by the passenger's wrongful assault, the passenger is injured, the carrier will not be liable."

This rule is undoubtedly the law of this state, provided in repelling the attack a servant of the carrier must use no more force to repel an attack upon his person by a passenger than is reasonably necessary for his defense find protection and orderly conduct of the carrier's business; and, where such carrier seeks to justify an assault by a servant upon the passenger, it will be incumbent upon him to show that no more force was used than was necessary under the circumstances. See Hutchinson on Carriers (3d Ed.) § 1102. This statement of the law by the author is based upon a number of authorities, one of which is O'Brien v. St. Louis Transit Co., 185 Mo. 263, 84 S. W. 929, 105 Am. St. Rep. 592.

Without specifying, we will state that as to the portions of the evidence which were admitted over the objection of the appellant that the answer called for a conclusion we are of the opinion that, while the objection is well made, the error is harmless in this case.

We must overrule appellant's assignment of error that the court improperly permitted the...