Action by Samuel Berger against the St. Louis Southwestern Railway Company. From a judgment on a verdict for plaintiff, defendant appeals. Affirmed.
Appellee filed his suit in the circuit court of Miller county, alleging that on June 4, 1894, while a passenger on the road of appellant, en route between Lewisville and Texarkana, the conductor of the train, Randall Silverman, cursed and abused him willfully, and did beat, bruise, and illtreat him, striking him with a lantern, by reason of which curses, blows, and illtreatment he was damaged in the sum of $20,000. Appellant answered, denying that appellee was a passenger, and alleging that the wounds received by appellee at the hands of Randall Silverman were received in a personal encounter between himself and Silverman, for which appellee was alone responsible; that the altercation was brought about by appellee striking the conductor in the face; that appellee's attack on the conductor was occasioned, not by a desire to protect himself, but originated in anger towards
the conductor, because of the attempt of the said conductor to prevent him from making improper advances towards a young lady passenger on said train; that the conductor, in defending himself and in striking appellee, acted, not as the agent of appellant, but in his own individual capacity, for which appellant is in no wise responsible. Upon trial, verdict was for appellee in the sum of $700, for which judgment was rendered.
At the instance of appellee the court gave the following instructions: "(1) If the jury find, from a preponderance of the evidence in this case, that, as alleged in the complaint, plaintiff was on the 4th day of June, 1894, a passenger in a coach of defendant, being transported from Lewisville, Ark., to Texarkana, Ark., and that, while being so transported as a passenger by the defendant, without lawful cause, he was beaten and wounded by the conductor of the defendant in charge of said train, and said plaintiff thereby injured or damaged in any amount, then is plaintiff entitled to recover. (2) The fact that the plaintiff may have first struck said conductor would not excuse or justify said conductor in using against plaintiff any more force than sufficient to protect said conductor from said blow, or a repetition thereof, or from any further violence at the hands of plaintiff. (3) Though the jury should believe, from the evidence, that plaintiff made the first assault upon the conductor on defendant's train, still, if they further believe, from the evidence, that the conductor so attacked repelled plaintiff's assault with more force and violence, and did more injury to plaintiff, than was reasonably necessary for his own protection from injury at the hands of plaintiff, then, as a matter of law, the conductor using such excessive force would be guilty of assault and battery; and if, in this case, defendant seeks to justify the assault and battery committed by the conductor upon the plaintiff, if you find such an assault and battery was made, from the evidence, on the ground that plaintiff first assaulted the conductor, it is incumbent on the defendant to show that no more force was used than the exigencies of the case called for. The force used must be suitable in kind and reasonable in degree; otherwise, the justification fails. An assault by a passenger upon a conductor of a train will not justify the conductor in pursuing and punishing the passenger after the assault is over. If he does so, he makes the defendant liable for the injury. (4) If the jury believe, from the evidence, that the plaintiff was guilty of indecorous conduct towards the lady passenger, then it was the duty of the conductor of the train to use all necessary and reasonable means to protect her from insults or annoyance, but he would have no right to abuse or insult the plaintiff as a punishment for such conduct; the conductor's duty being only to prevent a continuation of such conduct by the use of all necessary and reasonable means. (6) The jury are instructed that the facts, if proven, that the plaintiff may have spoken the first word or made the first remark to the conductor on the defendant's train, and this word or remark so spoken by plaintiff brought on the difficulty, and caused the assault and battery which ensued, and the plaintiff struck the first blow, would not, of itself, excuse or justify said conductor in using against the plaintiff any more force than was reasonably necessary to protect him (said conductor) from said blow, or a repetition thereof, or from any further violence at the hands of plaintiff." To the giving of each of which the appellant separately excepted.
The appellant asked the court to give the following instructions: "(2) The jury are instructed that, while the defendant is responsible for the acts of its conductors, in their treatment of passengers, done in the line of their duty, in the scope of their authority, yet the conductor has the right to resent and resist an assault made on him by a passenger, or any one else, and his act in resisting or resenting such an assault is a personal act of the conductor, for which the principal (the defendant in this case) is not responsible. (3) If the jury find, from the evidence, that the assault of the defendant's conductor on the plaintiff was not malicious, and was not the result of a reckless disregard of plaintiff's rights as a passenger, but was occasioned by the assault of plaintiff on the conductor, and was made to repel and resent such assault, then the plaintiff is not entitled to recover any damages for the pain, suffering, or humiliation experienced by him, and your verdict should be for the defendant. (5) If the jury find, from the testimony, that the conductor in charge of the train on which plaintiff was a passenger did strike plaintiff, and injure him, as claimed by plaintiff, and that in so doing he used more force than was necessary in order to repel any assault which may have been made on him by the plaintiff, or that he used more force than was necessary in order to prevent any improper interference with another passenger on the train by the plaintiff, and you also find that the unnecessary force and violence on the part of the conductor was done under excitement and in anger, occasioned by the assault of plaintiff, or by improper conduct of plaintiff towards another passenger, then plaintiff cannot recover, as against defendant, and your verdict will be for defendant. (6) If the jury find, from the testimony, that the plaintiff was a passenger on the defendant's railroad at the time and place claimed by him, and that he was beaten and bruised by the conductor of said train with a lantern, and that from the said beating and bruising the plaintiff has suffered physical pain, and may probably continue to suffer therefrom, and also experienced humiliation by reason thereof, and that said beating and bruising was caused by the act of plaintiff in slapping the said
conductor's face, by which the said conductor was angered and excited, and while so angered and excited gave the blows with the lantern, then your verdict should be for the defendant, although you should find, from the testimony, that the conductor used more force than was necessary to repel the assault made on him by the plaintiff." Of which the court amended instruction No. 3, by adding at the end thereof the words, "Unless you find that he used more force than was necessary to protect himself." The court gave No. 3, as amended, and No. 4, and refused Nos. 2, 5, and 6. To the amending of said instruction No. 3 as aforesaid, and giving the same as amended, and to the refusal of the court to give each of said instructions Nos. 2, 5, and 6, appellant separately excepted.
Sam H. West and John T. Sifford, for appellant. Scott & Jones, for appellee.
HUGHES, J. (after stating the facts).
Briefly the case may be stated as follows: Appellee was a passenger on train of appellant. He was a New York jewelry drummer, and took a seat near a girl of 17 years, a stranger to him. The conductor removed this girl to the rear of the coach. Appellee said to a friend he would go back and see why the conductor moved this girl. He went back, sat down by the girl, and began inquiring where she was going, and asked her other questions. The conductor looked at him in a manner that convinced him that the conductor, to say the least, was suspicious of his intentions. From this an altercation ensued, in which appellee struck the conductor first, and in turn the conductor struck him, and beat him with a lantern. There was evidence tending to show that the conductor gave the appellee a serious and severe beating with his lantern, and that the appellee was endeavoring to ward off the blows, or protect himself by throwing up his hands; that the brakeman, while this was going on, stood behind the conductor, and twice, when the conductor ceased beating the plaintiff, told him to give him some more; and that thereupon the conductor hit him two more licks. To use his language, "I think he gave him some more twice." The evidence tended to show that the conductor only stopped beating the appellee because he discovered he was a Mason; that the conductor struck several blows, — as many as three to five each time; then he would talk to the plaintiff, and strike him again. The blows were upon the head and shoulders of the plaintiff, who tried to ward them off with his hands. Plaintiff's hat was knocked off, there was a scalp wound, and the blood ran over his face, hands, and clothing. Dr. Webster, who dressed the plaintiff's wounds, testified: "The wounds were on his head, left shoulder, and arms; two or three wounds on the head, his shoulder was pretty badly bruised, and finger pretty badly cut. One of the wounds on his...
