129 Mo. App. 301 | Mo. Ct. App. | 1908
According to the testimony for this plaintiff he was assaulted by a brakeman on one of defendant’s trains on which plaintiff was a passenger, beaten and bruised and thrown from the train. The incident occurred at Sikeston, July 25, 1905. Plaintiff, who is a commercial traveler, purchased a ticket at Sikeston for a ride to Charleston. The train on which he expected to travel and which carried passengers, was a mixed train, part freight and part passenger. The rear car was a passenger coach, or rather a coach which carried expressed goods in one division and passengers in the other. Plaintiff was delayed in purchasing his ticket in consequence of the station agent handing him an ordinary ticket, whereas he should have received what is called a credential ticket. By the time he procured the right one the passenger coach was not near the depot, and as the train would not stop again .at the depot before leaving the station, plaintiff was directed by the conductor to get into a box car and remain there until the first stop of the train when he could enter the passenger coach. The conductor assisted plaintiff to mount into a box car, where he seated himself until the train started, or was ready to start. Another passenger was in the box car. One of the train crew, a brakeman, observed plaintiff in the car and told him
It is assigned for error that the court received evidence concerning the loss of earnings suffered by plaintiff in consequence of the assault, though there was no averment in the petition to which such evidence was relevant. Plaintiff testified he was laid off from work two Aveeks and on account of this fact fifty dollars was deducted by his employer from his salary. The petition avers that in consequence of the assault and inhuman treatment received by plaintiff he was seriously injured physically, the particulars of his physical injuries being related, and was confined to his bed for a long interval under the care of a physician “and compelled to neglect
Error is assigned on a ruling of the court permit
Defendant requested the court to instruct the jury that if the brakeman made an unprovoked assault on plaintiff and struck and heat the latter without cause, such assault was not in the line of duty of the brakeman and the company was not liable for the injury inflicted. This instruction was refused and rightly. There is no authority for it in this State. The law is 'directly to the contrary. The evidence of both plaintiff and the brakeman who committed the assault, shows the affray arose in connection Avith the brakeman’s duty to look after the train and the safety of the passengers on it. If the version of plaintiff be accepted, Avhen he was first accosted by the brakeman the latter wanted to know what plaintiff was doing in the car and said he had no business in there; at the same time remarking it was a dangerous place to ride. The brakeman’s version was that he Avas endeavoring to get plaintiff into the passenger coach where he might be secure. On any view of the case the assault occurred Avhile the brakeman was ¿¿ting in the line of his employment. But this is not the essential fact. Defendant’s liability arises not out
If plaintiff will remit from the judgment the sum of fifty dollars he swore he paid for a substitute in his place while he was disabled, the judgment will be affirmed for the balance. Otherwise it will be reversed and the cause remanded for a rehearing. The remittitur must be entered to save a reversal, in ten days from the date of the handing down of this opinion.