Plaintiff alleges, in his petition, that defendant unlawfully arid maliciously assaulted him and ejected him from a street car operated by defendant on one of the lines of its street railway system in St. Joseph. Both compensatory and exemplary damages аre claimed. The answer is a general denial. A trial to a jury resulted in a verdict awarding plaintiff $1250 as compensatory damages and allowing nothing by way of exemplary damages. Defendant appealed and contends, first, that the verdict is so clеarly against the evidence that it should be pronounced the result of passion and prejudice on the part of the jury. The well-settled rule that prevents us from interfering with a verdict on the ground that it is against the weight of the evidence is recognized by counsel for defendant whose contention, in substance, is that the demurrer to plaintiff’s evidence should have been sustained on the ground that the evidence clearly discloses, not only a lack of merit in the cause of action asserted, but that plaintiff began and prosecuted the action in
Facts disclosed by the evidence of plaintiff are as follows: The incident which gave rise to the controvеrsy occurred early in the morning of February 13, 1909. Plaintiff, who was employed in a Turkish bath establishment at Sixth and Edmond streets in St. Joseph and who lived in the north part of the city near defendant’s “Union line,” left home before daylight to go to work. He boarded a slowly moving, inbound сar, in charge of a conductor and two motormen — one the regular motorman and the other a “student.” The conductor refused to receive him as a passenger and ordered him to leave the car for the reason that the car was not then in service for the transportation of passengers, but was on its way from the car barns, which were located on the “Union line,” to Fifth and Edmond streets, a junction point where the car would begin its service on the “Wyatt Park line.” That junction was only a blоck from plaintiff’s place of business and he requested that on account of the severe cold he be allowed to ride to the junction and he offered to pay his fare. The conductor refused the request and told plaintiff to get off. Plaintiff kept his seat and when the car had crossed some railroad tracks, the motorman came back into the car at the request of the conductor to assist in the ejection of plaintiff. Plaintiff testified: “He (the motorman) had a piece of brаss; it looked like a wrench or something in his hand . . . the conductor grabbed me and started me to the door. . . . He (the motorman) took hold of the other side and helped him back. ... I walked to the door . . . Well, I started — I had hold of the handle like this (indicating) ; was facing the way the car was going and just as I was going to get off, the conductor kicked me and then I fell. Q. What did the conductor kick you with — what part of his body? A. Kicked me with his foot. Q. Where did he strike you? A. Hit me in
At this point plaintiff lost cоnsciousness and did not regain it until two weeks had elapsed. A colored man introduced as a witness by plaintiff was on the street and saw plaintiff ejected. He testified “He (the conductor) come back to the man again and lays his hands on his shoulder. I don’t know what the words was at all and he then turned around and looked and the motorman came in and they both held their hands on his shoulder. . . . As he went to the steps he grabbed hold of the car and they shoved him out. Q. How did they shove him out, with their fists or hands? A. I don’t know; so quick — only just come around and shove him with his knee and feet; he held the car that way as if he was going to get on. . . . Q. What became of the man; how far did he go from the car? A. When he first fell off the car, he went down, he got up and fell again and hollered for me to come over and I said, No, sir. I ain’t going to.’ . . . He just got up and rolled and fell and he wanted me to come to him and I told him, No,’ I was not coming to him.”
The witness waited for another car to come and when it came, he stopped it and called the conductor’s attention to plaintiff who was lying in the street. There was a policeman on the car and he and the conductor put plaintiff aboard and^took him to Fifth and Edmond streets and from there to the bath house. The policeman testified: “The old gentleman — the colored man — first said that there was a man here on the south side of the track; at that time we were pulled across'the track— the conductor flagged the car and they pulled across the track and stopped and I found this man that was there hurt, аnd I got off and I helped the conductor get him on the car. . . . Q. How did he get' to the bath house? A. We helped him there. . . . Q. What was his condition at the bath house? A.
A doctor called to tbe batb bouse to give plaintiff professional attention testified that plaintiff “wasn’t unconscious; be was rather delirious; talked foolishly. . . . Q. Was be able to get up and walk? A. He would get up and fall back and once when I had my back turned for a moment, why be got up and fell on tbe floor. . . . Q. Did you accompany bim borne? A. Yes, sir. . . . Q. Was be ever confined to bis bed? A. About four weeks after the accident. Q. Wbat injuries, if any, did you find at tbe time you saw bim, wbat was bis condition? A. Well, at first be couldn’t stand up; that seemed to be due to tbe pain that be bad in bis head; a kind of vertigo; be bad positive symptoms of concussion of tbe brain; be would be taken with blindness and be would raise bis bead and bis' eyes would turn up; be couldn’t see; I examined bim; there was no wound or anything of that sort such as would produce a hemorrhage; and when I found that out, I bad tbe ambulance called and put bim in tbe ambulance and got bim borne. And there I went over bim more carefully and found that bе bad partial control of bis legs; not good control; well, I bad bim lie down and after I put bim to rest, be would rise up in a sitting posture and would then fall back. Q. Wbat did you find in your examination of bis body? A. Well, there was a slight blackening of tbe skin — • underneath the skin — on tbe abdomen аnd a little to tbe left of tbe middle line. . . . Q. On your ex-
Plaintiff says that throughout the occurrence he was courteous to the conductor and motorman, that he was afraid to be otherwise and that the conductor was abusive in his language and demeanor. The conductor and motorman tell a different story. They describe plaintiff as being boastful and insulting. They say he claimed he had consulted a lawyer who advised him that he had a right to ride on any car run on the road whether or not it was in service at the time, and he invited the conductor to feel the muscle of his right arm and then think again before attempting to put him off the car. Evidence of defendant tended to show that plaintiff was in the habit of boarding cars he knew were on their way from the barn and not in cоmmission, and of forcing the conductors to receive him as a passenger by threats and intimidations. Further it appears from defendant’s evidence that plaintiff was not assaulted as he left the car and that he did not fall but voluntarily threw himself to the pavement and simulated an injury.
It will be seen that the evidence is very conflicting. From the viewpoint of that introduced by defendant, plaintiff is an impostor and we must say the evidence supporting that view is strong and persuasive. But we feel compelled to say that the evidence of plaintiff is substantial and of sufficient evidentiary strength to
Plaintiff testified that on former occasions he had been accepted as a passenger on cars not in service on the Union line. He knew defendant did not want him to ride but, nevertheless, he persisted in his efforts to ride on such cars. He was cross-examined as follows:
“Q. Did you ever tell any of the boys that ran on those cars there when you got on the cars that you would jump on those cars; that you had consulted a lawyer and that you would ride on any cars you pleased? A. No, sir.”
The judgment is affirmed.