Utterback v. St. Louis & S. F. Ry. Co.

• Citation: 189 S.W. 1171
• Decision Date: 01 December 1916
• Docket Number: No. 17687.,17687.
• Court: Missouri Supreme Court
• Parties: UTTERBACK v. ST. LOUIS & S. F. RY. CO.

189 S.W. 1171

UTTERBACK v. ST. LOUIS & S. F. RY. CO.

No. 17687.

Supreme Court of Missouri, Division No. 1.

December 1, 1916.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Edward Utterback against the St. Louis & San Francisco Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded for new trial.

The plaintiff brought this suit in the circuit court of Stoddard county against the defendant to recover the sum of $27,000 damages, for injuries sustained by him in jumping from one of its passenger trains, coerced by the alleged wrongful acts of the agents of the company. The plaintiff recovered the sum of $15,000, from which the defendant appealed to this court.

The petition upon which the cause was tried, after stating that the defendant was a common carrier of passengers, and that plaintiff was a passenger upon one of its trains, for cause of action states:

"And plaintiff further states that, while he was quietly sitting in one of the seats provided for passengers, in one of defendant's trains, a stranger whose name, he afterwards learned, is Buck Yellowstone, came up and commenced cursing and abusing him, but, upon his remonstrating, left without doing him any personal violence; that afterwards, a brother of said Yellowstone approached plaintiff's seat and in a loud and violent manner threatened, cursed, and abused him, holding during the time a pistol in his right hand concealed in his bosom, and finally struck plaintiff a blow in the face with his left hand; that, upon being thus assaulted plaintiff arose from his seat and drew his pistol to defend himself against said Yellowstone, but that a fellow passenger grabbed his hand and prevented him from using his pistol; that, while he was thus being held and restrained, W. H. Washburn, the conductor of said train, rushed up to plaintiff in an angry and violent manner with a drawn revolver in his hand, and, presenting the same at plaintiff's face, threatened with abusive language to shoot him full of holes, unless he gave up his pistol; that about this time plaintiff's pistol was taken from his hand by the fellow passenger who had hold of him and given to the said conductor, who thereupon announced to plaintiff that he had a right to arrest him and did arrest him, and directed him to take his seat, while plaintiff was so disarmed and sitting down in his seat, as commanded by the conductor, the two Yellowstone brothers and several of their companions in the presence of the conductor made an effort to again assault the plaintiff, and Buck Yellowstone struck him in the face, but they were prevented by other passengers on said train from doing further violence; and plaintiff further states that he appealed to the conductor to protect him from such assault, violence, and abuse, but that he failed and refused to restrain or arrest said turbulent and violent persons, who were pursuing, annoying and assaulting him, as they were the ones who were causing all the trouble, said conductor replied in presence and hearing of the plaintiff, `You keep your damn mouth shut or I will arrest you'; that the defendant failed and neglected to afford the plaintiff the protection to which he was entitled as a passenger, and through its conductor and other agents on said train permitted the said Yellowstone brothers and their companions, who were drunk and disorderly, to pass back and forth on said train to the annoyance and terror of the passengers and especially of plaintiff who had been twice assaulted, as aforesaid; and plaintiff further states that he was a stranger in the country and to the passengers and persons on said train, and, having been disarmed, as aforesaid and entirely unprotected, was in great fear of further violence at the hands of said drunken and turbulent parties, who had assaulted him, as alleged, and were permitted by defendant's agents to roam at will through said train; that, some time after he had been placed under arrest by said conductor and directed to take his seat, the noise was heard of a disturbance in the car immediately in the rear to which the conductor and the Yellowstone brothers and their companions had gone, and plaintiff, impelled by the fear said parties would re-enter the car where he was, left his seat and walked towards the forward end of the passenger coach in which he was then, there, and at that time being, for the purpose of taking refuge in the car immediately in front; that, when plaintiff had reached the door at the front end of the car in which he was then being, the said Yellowstone brothers and others had entered from the rear end and were passing through the car in the direction of plaintiff, cursing and saying in a loud voice, `Wonder where he is,' `Let's do him up when we find him,' and `Let's hunt him up and kill the son of a bitch;' that plaintiff, to escape said parties, undertook to enter the car...