Sonnen v. St. Louis Transit Co.

• Decision Date: 03 November 1903
• Parties: SONNEN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

76 S.W. 691

102 Mo. App. 271

SONNEN v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

November 3, 1903.

CARRIERS—INJURY TO PASSENGER—SELF-DEFENSE — DAMAGES — HUMILIATION AND DISGRACE — EVIDENCE — QUESTION FOR JURY— APPEAL—DAMAGES UNDER STATUTE.

1. In an action against a street car company for injuries, an instruction that, if a conductor assaulted a passenger without cause, the company is liable, is not erroneous, as ignoring the conductor's right of self-defense claimed by the answer, when other instructions fully defined that right.

2. In an action for injuries, an instruction as to assessing exemplary damages against appellant will not be considered on appeal, where the jury awarded none.

3. Evidence held to warrant the submission to the jury of the question of actual damages resulting from humiliation and disgrace caused by an assault.

4. Though an appeal is without merit, 10 per cent. damages against the appellant, under the statute, will not be allowed where it does not appear that it was taken solely for vexation or delay.

Appeal from St. Louis Circuit Court; J. A. McDonald, Judge.

Action by Jacob Sonnen against the St. Louis Transit Company for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Paxson & Clark, for respondent.

BLAND, P. J.

For plaintiff, the evidence tends to show that on October 29, 1902, he was a passenger on one of defendant's street cars traveling west on Easton avenue, in the city of St. Louis; that the inside of the car, and also the rear platform, were crowded with passengers; that when plaintiff boarded the car he took a position on the rear platform between the door of the car and the open side of the platform, with his back against the car, so that passengers getting on or off the car would be forced to pass around him; that, when Eighteenth or Nineteenth street was reached, the car stopped to let off a lady passenger, and the conductor asked the plaintiff to move, to let the passenger off; that he drew himself up closer to the body of the car to make room for the passenger to pass between him and the other passengers on the platform to reach the step; that the conductor then slapped him on the shoulder with considerable force, and plaintiff threw up his hands and said, "Please don't do that," whereupon the conductor struck him a severe blow on the side of the head, knocking him into the street; that the plaintiff was then told by some of the passengers to come aboard the car—that he had a right to ride; that he did so, and, when the car reached the car stables of the defendant company, the plaintiff and other passengers went in and reported the difficulty to the officers of the company. The conductor was not discharged. Plaintiff testified that the blow injured his hearing; that he was dizzy; that he suffered severe pain in his head, and was treated by a physician, but since his discharge by the physician he frequently had the earache and headache; that he had never had earache prior to the assault. The physician who attended him testified: "My diagnosis was an affection of the inner ear, in all probability— Taking the history of the case into account, in all probability a small hemorrhage into the ear, is my diagnosis. I treated Mr. Sonnen in the usual manner, and by and by all the symptoms disappeared. I dismissed him the middle of December, and at that time the hearing had returned to the normal." That a blow such as plaintiff said he had received could cause ringing in the ears, and more or less pain. He further testified that "the immediate consequences are more or less pain, which pain need not be a severe one, necessarily, but one of the symptoms is dizziness—a feeling of dizziness, more or less severe. If the dizziness is very severe, the patients stagger, and they are inclined to vomit. The three subjective symptoms are dizziness, ringing in the ears, and more or less impairment of the hearing. I have examined him again, about three days ago, and found the hearing normal in that ear, and in my opinion there will be no after effects." On the part of the defendant, the evidence tends to show that the conductor had politely requested plaintiff to move, so that passengers could get on and off the car, on several occasions before the car arrived at Nineteenth street; that there was room in the car or elsewhere on the platform for him to stand, if he had chosen to do so, but that he persisted in remaining where he was, and, when the car stopped at Nineteenth...