Hedge v. St. Louis & San Francisco Railroad

164 Mo. App. 291 | Mo. Ct. App. | 1912

REYNOLDS, P. J.

(after stating the facts). — ■ Five errors are assigned here by appellant. First, that the demurrer asked at- the close of all the testimony should have been given. Second, third and fourth, that tire three instructions given at the instance of plaintiff were erroneous. Fifth, that the verdict is excessive and bears no relation to the injury sustained and that it is grossly excessive in respect to punitive damages.

We see no particular benefit in setting out the instructions given at the instance of the respective parties. It is sufficient to say of those given for plaintiff that in so far as they omitted to specifically set out the duties of Brownfield and to specifically instruct the jury as to what acts it was necessary to find as evidence of the fact that Brownfield was not only a special policeman but also an agent of the defendant railroad company, having duties in connection with the enforcement of the rules of the defendant company in and about the station, that these are more matters of nondirection than of misdirection. Considering the instructions as a whole and in connection with those given for appellant, we think they covered the case correctly. On the facts in the case, as we have briefly summarized them, it is apparent that it was a case for the determination of the jury, subject to the approval of the trial court. This is assuming that’the jury was properly instructed as to the law, and we think that it was. We find no reversible error in the three instructions given at the instance of plaintiff.

Nor can we agree that the verdict is excessive either as to actual or punitive damages. Assuming that the jury believed the testimony of the plaintiff as to the extent of his injuries, and the suffering consequent on them, the actual damages are not excessive and, if the jury believed the testimony of plaintiff and of his witnesses as to the character of the assault, as they had a right to do, the punitive damages cannot be said to be excessive. There was evidence in the case tending to show that this was a brutal and unwarranted assault by an employee of the railroad company, -who, while an inspector of locomotives, engines and machinery and the condition of trains, that is a mechanic, was in point of fact also charged with and engaged in the duty of enforcing the rules of the-railroad company in the preservation of order around the station. The impression which the testimony makes upon us is that the official character of a special policeman with which the defendant Brownfield was clothed, was more nominal than real, and entirely’ for the benefit of the railroad company and to secure more -efficient enforcement of its rules. So the jury evidently thought. There is not a particle of evidence in the case tending to show that Brownfield considered himself or that he was considered by anyone else, as having any duties as a special policeman. It is true he was an inspecting machinist and that those duties required his presence at the station. But the evidence shows he was receiving nothing and was to receive nothing whatever by way of compensation from the city for his services as policeman save when he made arrests and a conviction was had; then he was to have the fees allowed by law, if any. The evidence shows that he never received any such fees. While there is no evidence directly showing that the railroad had procured his appointment as a special policeman, it is very evident that his duties as such special policeman were confined exclusively to the premises and the business of the railroad company. It does not appear that he every did any duty as special policeman anywhere in Hayti than at the station of the railroad. His office as special constable was entirely for the interest and benefit of the railroad company.

It is argued by the learned counsel for appellant that it is clearly established by the evidence in the case, first, that Brownfield was a duly commissioned and acting police officer of the city of Hayti and as such charged with the duty of preserving the peace of the city and that he was especially enjoined by the city to discharge these duties at the station. There is not a particle of evidence in the case to show any ordinance of the city relating to the matter of those duties or their discharge by Brownfield. He testified that he did not know what the ordinances were, and the only orders the evidence shows he was enforcing about the station were the orders of the railroad company itself, those orders evidenced by the signs posted up in and around the depot. These were the orders of the railroad company, not ordinances of the city.

The second point made as to this matter of employment is that Brownfield at the same time was an employee of defendant in the capacity of a machinist and that his duties as such required him to inspect and repair engines moving through Hayti and necessitated his presence at the depot at frequent intervals and that no instructions were given him by defendant which required him as a part of his duties as an employee of defendant to make arrests or to discharge any of the functions of a police officer. That may be, but the evidence shows that he was discharging the duties of a watchman and this with the knowledge at least of the local agent of the company, and apparently of other officers of appellant. No one else paid him; his time from 7 p. m. to 6 a. m., belonged to the railroad company and he was paid by the hour.

His duties as policeman were incident to Ms duties as a mechanic. He was not made machinist because he was a policeman but was made a policeman because his duties as machinist kept him at and ar'ound the depot all night. Obviously he was clothed with police powers solely for the purposes of the railroad and for its protection and not for the protection of the' general public. So the jury obviously found, and it followed, as it also found, that the railroad company was responsible for his acts in and about its premises, no matter in what capacity and in the exercise of what powers he acted. His police powers were exercised for the sole benefit of the defendant railroad; the general public got none of his assistance; he patrolled no beat outside of the railroad premises; exercised no powers elsewhere. It is evident that but for his employment by the railroad company Brownfield woMd not have held the appointment of a special policeman. Receiving the benefits of his services, paying him for them, the railroad company cannot escape responsibility for his acts.

On the whole ease we find ample evidence to sustain the verdict of the jury and no reversible error to the prejudice of this defendant in the instructions given. The judgment of the circuit court is affirmed.

Nortoni and Caulfield, JJ., concur.