Sturgis v. Kansas City Rys. Co.

• Decision Date: 07 February 1921
• Docket Number: No. 13820.,13820.
• Parties: STURGIS v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

228 S.W. 861

STURGIS v. KANSAS CITY RYS. CO.

No. 13820.

Kansas City Court of Appeals. Missouri.

February 7, 1921.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Caldwell County; Arch B. Davis, Judge.

"Not to be officially published."

Action by Fred H. Sturgis against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard J. Higgins, of Kansas City, Kan., and Russel Field and Gabriel & Conkling, all of Kansas City, Mo., for appellant.

W. W. Calvin, of Kansas City, Ho., and Johnson & McAfee, of Hamilton, for respondent.

TRIMBLE, P. J.

Plaintiff brought this action to recover actual and punitive damages because of an assault committed upon him by two of defendant's servants, said assault being charged to have been done while in the performance of their duties and acting within the scope of their employment. The answer was a general denial. After a trial, the jury returned a verdict for $1,600 actual and $2,500 punitive damages, and judgment was rendered thereon, from which defendant has appealed.

Plaintiff, a farmer, visited Kansas City on August 28, 1918, to witness a flying exhibition given by the United States government at Swope Park. The exhibition was witnessed by a large number of people, perhaps 100,000 or more, and at its close plaintiff, together with a good-sized crowd, desiring to return from the park to the city on defendant's street railway, walked to the intersection of Sixty-third street and Swope Parkway, where plaintiff put himself in position to board the cars at a point where they were accustomed to stop for the reception and discharge of passengers.

Shortly after reaching said point, one of defendant's north-bound or cityward cars stopped directly in front of where plaintiff and others were standing for the purpose of boarding the same. Plaintiff was directly in front of, close to, and facing the rear door on the east or right-hand side, being the door through which passengers were admitted to and discharged from the car. IA had commenced to rain, the immense throng was going home, and cars, loaded to and beyond their capacity, were proceeding slowly along the line only a short distance apart. The car which stopped in front of plaintiff, however, was not crowded, only a few persons having to stand, and there was plenty of room for more. Anxious to board a car, the plaintiff, as did others in the number waiting there, rapped on the door for admittance and to attract the conductor's attention. The latter was inside facing the door and could see plaintiff through the glass, and plaintiff could see that the conductor was looking squarely at him, but the conductor made no move to open the door, whereupon plaintiff again rapped for admittance, but, instead of the door being opened, the car immediately began to slowly move on. As the rear end was moving past plaintiff the rope attached to the trolley pole was hanging clown and came within plaintiff's reach, and the latter unthoughtedly seized it, resulting in the trolley being pulled from the wire, and the car, of course, came to a stop after going a few feet. Realizing in an instant what he had done, plaintiff stepped along with or after the car, holding to the rope and attempting to replace the trolley on the wire.

Before he could do this, and while he was endeavoring to do so, defendant's employé Gossage rushed to plaintiff with an oath, angrily saying, "What in the hell are you doing here?" and seizing plaintiff's arms, pinioning them behind him, drew him off the track, at the same time drawing back his fist as if to strike him. While this was being done, Boyle, another employé of defendant, had also rushed up to plaintiff and, pulling the rope out of his hand, put it under a hook on the car and addressed the same sort of remark to plaintiff that Gossage had made. As Gossage drew back his fist, plaintiff turned his face toward him, and Boyle struck him in the temple with his fist and immediately Gossage also struck him, and he fell to the ground. Plaintiff attempted to arise, but was knocked down again by the men, who proceeded to kick him, and they kicked him out some 10 or 12 feet from where he was first struck and attempted to get up. A traffic policeman, attracted by the occurrence, came up, and to him plaintiff remonstrated about the treatment he was receiving; whereupon the policeman struck him in the face and knocked him down.

The assault of the two employés was particularly severe and brutal. Plaintiff was kicked in the side, back and ribs, in the stomach, and in the neighborhood of the testicles. He was bleeding, his front teeth were loose, his ear was cut, as also his lips, his eye was badly bruised and the skin under it broken; there were several bruises on his body, and his clothes were torn and dirty. Plaintiff is 0 feet tall, weighs 185 pounds, and is a strong man, but the beating he received caused him to be sick at the stomach and so faint that he could hardly stand. Gossage was 57 years old and weighed 210 pounds, and Boyle was aged 38 and weighed 185 pounds.

The two employés after the beating then consulted with the policeman, who asked "Had we better take him in?" To which either Gossage or Boyle said, "Yes; take him in;" whereupon the police ambulance or patrol wagon was called and plaintiff was taken to the police station, and two clays later was tried in police court and acquitted.

The above and foregoing are the facts as detailed by plaintiff and the other witnesses in his behalf, who were in the crowd and saw the beating, hut who were strangers to plaintiff at the time. Their evidence shows that at no time did plaintiff offer or show any resistance to the two employés or to the policeman; that the two employés began to strike him about the same time; that the beating began very quickly after the trolley was pulled from the wire, and just outside the end of the ties and between them and the cinder or dirt platform there. Plaintiff was not allowed to prove that the crowd remonstrated at the treatment accorded him; but a number of persons in the crowd, and among them several ladies, gave their names to plaintiff as witnesses to the occurrence, while he was being held waiting for the patrol wagon; and during this wait plaintiff was kept moving from place to place by the men and not allowed to remain at one point in the crowd.

There is no contention over the fact that Gossage and Boyle were both employ& of the defendant, sent out to facilitate the movement of the street car traffic, to keel) the cars from being impeded, and to prevent accidents, owing to the great crowd necessary to be handled and carried. The evidence of plaintiff shows that they were engaged in that work that day; and the evidence of both of the men, who were witnesses for the defendant, was that they were in the employ of the defendant, sent out there to do the above-mentioned work; that they were in the defendant's police department, each bearing a commission from the city with power to arrest people, and especially to "arrest on sight anybody doing anything to the property of the company." They each carried a revolver. Gossage testified that the reason he was interested in getting the trolley back on the wire was because, owing to the crowds, there were people riding on the top and sides of the cars, and, if plaintiff had let loose the trolley rope the trolley would have likely broken the wire and caused an accident, and he was there to give good service, get the people home, and prevent accidents. Plaintiff's evidence was that there were no persons on the top or sides of this car. Boyle said he took the rope out of plaintiff's hands and hooked it onto the car because he was afraid plaintiff would turn it loose, whereby it would sway, causing an accident; that after he hooked it plaintiff "seemed as though he was going to grab it off again and him and I scuffled around there." The bystanders, however, plaintiff's witnesses, say plaintiff made no such effort, and that the two men knocked him down and kicked him. Both Boyle and Gossage deny that they ever struck plaintiff; and defendant's evidence is to the effect that no striking occurred until out in the road of Swope Parkway after the street car had gone on its way, and that then the two men did not strike plaintiff, but that a fight occurred there between him and the policeman.

It is now contended for the first time that the petition states no cause of action. Of course, for such an objection...