Scott v. St. Louis-San Francisco Ry. Co.
| Decision Date | 05 July 1932 |
| Docket Number | No. 17380.,17380. |
| Citation | 52 S.W.2d 459 |
| Parties | SCOTT v. ST. LOUIS-SAN FRANCISCO RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County.
Action by Max C. Scott against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
E. T. Miller, of St. Louis, and Henry S. Conrad, L. E. Durham, Hale Houts, and Ilus M. Lee, all of Kansas City, for appellant.
Clif Langsdale and Fred Bellemere, both of Kansas City, for respondent.
Action to recover damages for personal injuries resulting from a battery. Plaintiff recovered judgment for $500, and the defendant has appealed.
Plaintiff's evidence tends to show that he was foreman of a switching crew of the Missouri, Kansas & Texas Railroad Company which brought four cars and an engine into the defendant's switch yards with the intention of placing two of them on defendant's track and then leaving the yards to take the other cars to the Kansas City Stockyards. A yardmaster of the defendant, other than the employee who committed the alleged assault on plaintiff, directed the disposal of the two cars intended to remain in the yards. The plaintiff then gave his engineer signal to proceed to the stockyards, and thereupon the cars were moved three or four car lengths, when defendant's assistant yardmaster, Claxton, who at that time was in charge of defendant's yards, ordered the engineer of plaintiff's train to stop. The order was obeyed. Thereupon the assistant yardmaster gave said engineer order to back the cars into the clear of the other tracks and remain there until he told him to proceed. As the engineer was moving the cars back, plaintiff released the air, set the brakes, and stopped the train. Plaintiff then went to his engineer to learn why the movement of the train had been changed and was informed it was on order of Claxton. Plaintiff then sought Claxton to ascertain why his train was being held. He met Claxton coming from the switch or yard shanty, and Claxton, without provocation, struck him over the side of the head with a lantern and ordered that plaintiff not move the engine until he (Claxton) gave him instructions to do so, saying: "I'll show you who is running things around here." Claxton struck plaintiff with the lantern five or six times.
The defendant's evidence was that Claxton was its assistant yardmaster in charge of its yards at the time in question; that he "cut the Katy engine" from the cars and ordered the engineer "to stay there and not to move"; that after he uncoupled the engine from the cars he walked around the engine and there met plaintiff, who asked him if he had cut the engine off and to which he replied that he had; that he said to plaintiff that one of his crew was drunk and was trying to whip everybody in the yards and that he was going to get a special officer and take him out of the yards; that he had given the engineer order not to move the engine until he told him to do so; that plaintiff used vile language, threatened to strike him, and thereupon he (Claxton) struck plaintiff.
Four assigned errors are brought forward in the brief: (1) That the petition does not state facts sufficient to constitute a cause of action; (2) the plaintiff made no case against the defendant; (3) the trial court erred in giving plaintiff's instruction No. 1; and (4) the verdict was excessive.
The petition alleges that defendant maintained switch yards in Kansas City; that plaintiff was an employee of the Missouri, Kansas & Texas Railroad Company; that plaintiff in pursuit of his employment went with a train of cars into defendant's switch yards where Claxton, an employee of the defendant, while in pursuit of his said employment and in the furtherance thereof, unlawfully and wantonly struck plaintiff.
The defendant argues that the petition does not sufficiently allege that Claxton at the time of the commission of the alleged wrong was acting within the scope of his employment and in furtherance of the defendant's business; that the allegation that Claxton committed the assault "while in the pursuit of his said employment and in the furtherance thereof" is mere conclusion and not statement of fact. Reliance for this insistence is based upon the principle announced in the following cases: Snyder v. Railroad, 60 Mo. 413; Maniaci v. Express Company, 266 Mo. 633, 182 S. W. 981. In each of those cases the petition was assailed by demurrer. In this case the defendant did not file demurrer, but proceeded to the trial of the cause as though the petition was sufficient, and hence we shall determine the question in the light of the entire record.
Plaintiff's evidence showing that Claxton was defendant's assistant yardmaster in charge of its switching yards, that he had authority to control the movement of plaintiff's train, and that he was exercising that authority at the time he assaulted plaintiff, was admitted without objection.
The defendant on its part introduced evidence to the same effect; proceeded upon the theory that Claxton was acting within his legal right in preventing plaintiff from moving his train from the yards for the reason that plaintiff and other members of his crew were drunk, and that Claxton struck plaintiff in the necessary defense of his person. It is thus clear that the parties tried the case upon the theory that the petition sufficiently alleged that Claxton, in stopping the train and ordering that it remain stationary, was acting in furtherance of his employer's business.
It has been said many times that a petition which wholly fails to state a cause of action may be assailed at any stage of the proceeding; and it has also been said many times that if the parties to an action try the cause as though the petition alleged a fact necessary to entitle the plaintiff to recover and evidence to prove such fact was admitted without objection, the petition upon appeal...
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Davis v. Terminal R. Ass'n of St. Louis
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