117 Mo. App. 255 | Mo. Ct. App. | 1906
Action against a common carrier to recover damages alleged to have been sustained by a passenger as the result of the breach of the contract of carriage. Plaintiff recovered judgment in the sum of one hundred dollars, actual, and twenty-five hundred dollars, punitive damages. Motions for new triál and in arrest of judgment were filed by defendant and, upon hearing, sustained by the court on the ground that error had been committed “in giving plaintiff’s instruction numbered 6 and in refusing defendant’s instruction numbered 10.” The cause is here on plaintiff’s appeal.
The petition charges: “That on or about the 2nd day of January, 1904, while the plaintiff was a passenger, having duly paid the usual compensation for carriage upon one of the lines of the said street railway of the defendant company, and at or near the corner of Main street and Missouri avenue in said city of Kansas City, the defendant, through its employees, the motorman and conductor in charge of such car, while in the dis
“That such injuries so inflicted upon the plaintiff were inflicted violently, maliciously, wantonly, recklessly and oppressively, by reason of which the plaintiff should recover from the defendant the additional sum of ten thousand dollars as exemplary, punitive and vindictive damage.”
The evidence introduced by plaintiff, consisting chiefly of his own testimony, discloses this state of facts: Plaintiff, a young man twenty-four years old, was employed as a cook in a restaurant near Fourth and Main streets in Kansas City. On the day of the occurrence in question, he quit work at 8 o’clock in the evening and went to his home in the southeast part of the city, arriving there at about 8:30 o’clock. His brother-in-law, with whom he lived, had left word for him to come to a certain saloon, some five or six blocks away, and plaintiff immediately repaired to the saloon, where he met his brother-in-law, and each took a drink of whiskey. After
The conductor testified that, when he discovered plaintiff was smoking in the car, he went up to' him and in a courteous manner informed him that it was against the rules to smoke and requested him to go to the vestibule. Plaintiff rejoined, “Where is the vestibule?” The conductor replied, “It is out in the rear end of the car .here.” Plaintiff exclaimed, “Oh, I don’t know.” The conductor says plaintiff’s manner was “mighty haughty” .and he kept on smoking without making any show of compliance with the request. The conductor then said to him, “My friend, you will have to smoke out in the vestibule, if you want to smoke.” Plaintiff continued smoking and the exasperated conductor knocked out the cigarette, whereupon plaintiff “rose right up fighting,” knocked the conductor down and was engaged in pummeling him when the motorman came to the rescue, hit plaintiff with the sand punch and ordered him to “get off the car.” Plaintiff immediately left the car and went to the sidewalk, where he stood for a few minutes. The conductor got .up, looked for, and found his cap, and went to the rear vestibule with no. thought of renewing the fight. It then occurred to him that it was his duty to have the plaintiff arrested and he proceeded to leave the car for the purpose of finding an officer. Plaintiff then started to run away, and, fearing that he might escape, the conductor entered into pursuit for the purpose of keeping plaintiff in sight until he could encounter an officer. Seeing that he was pursued, plaintiff suddenly stopped, turned and advanced upon the conductor, knocked him down, cut him in the face with a knife and was endeavoring to inflict further injury upon him when
The two instructions, which the court found were erroneously ruled upon, are as follows
No. 6 given for plaintiff: “Even though yon may believe from the evidence that the obligation of defend-, ant to plaintiff as a passenger (if any) had terminated upon plaintiff’s leaving said car, still if you believe from the evidence that after plaintiff had left said car the conductor of said car pursued the plaintiff for the purpose of arresting him because said conductor believed plaintiff had violated the law while on said car, and in. such pursuit wrongfully shot plaintiff in the back, then if you further believe front the evidence that the conductor in so doing was acting within the scope of his employment as a servant of defendant, then the-defendant is responsible for his wrongful acts (if any). In determining whether such wrongful acts (if any) of such conductor were committed within the scope of his employment, you are instructed the defendant is liable for all acts, committed by such conductor while in the performance of the work entrusted to him, whether lawful or unlaw-ful, which are within the scope of the authority con-', ferred upon him either expressly or by fair implication, even though the specific act was not'expressly authorized by defendant.”' '
No. 10 asked by defendant-, the giving of which was! refused: “If you find from the evidence that plaintiff and defendant’s trainmen had a fight oh the car of defendant at the time and place in question, and that soon thereafter plaintiff got off of said car and ceased tó be a passenger thereon, and after he got off of said car the-conductor of defendant for the purpose of finding an officer to procure the arrest of plaintiff left the car and followed plaintiff, and after plaintiff and said conductor had gone some distance away from said car they had an altercation and said conductor shot plaintiff, then you áre instructed that defendant is not responsible fox5
Not only is the duty upon the carrier to exercise the highest degree of care during the transportation of the passenger to protect him against assaults and outrages, whether offered by strangers or by the carrier’s own servants, but that duty continues until the passenger has left the vehicle in safety at. his destination. As to the acts of its servants, the duty of the carrier is that of an insurer. Its contract to carry safely implies an agreement for considerate and courteous treatment of the passenger by the carrier’s servants. And if it becomes necessary for the carrier to eject the passenger before the end of his transportation, because of the misconduct of the latter, no more force must be employed than is required to accomplish the removal of the passenger from the car. If the carrier fails in the performance of any of these duties, it is liable to the passenger for any injury thereby sustained. On the other hand, the passenger is duty bound to conduct himself in a decent and orderly manner. He should observe and obey the reasonable rules established by the carrier for the benefit of its service or for the safety, convenience and comfort of its other passengers, and, if he refuses to do this, he forfeits his rights under the contract of carriage and subjects himself to removal from the car. [Eads v. Railway, 43 Mo. App. 536.]
It is not intimated, nor would the suggestion be entertained, that defendant’s prohibition of smoking in its closed cars, which are used alike by all classes and conditions of people, is not a reasonable regulation. It is essentially for the comfort of the public and we do not hesitate in saying, as a matter of law, that a passenger who persists in disobeying it, after his attention is called to it, deserves expulsion from the car. Plaintiff’s own testimony admits of no other construction than that he knowingly and deliberately violated this rule and was
But the conductor, instead of following this course, according to his own admission, became a wrongdoer himself. We do not mean to say that a conductor must degrade his manhood and tamely submit to gross insult, but in serving the public and in performing his master’s contract to treat passengers with all due consideration, he is expected to exercise some degree of self-restraint, and not to fly into a rage and misbehave at every impertin-' ence from a passenger. His right and duty to eject a passenger on account of misconduct, not grossly insulting or offensive, does not justify him in assaulting the passenger unless the resistence of the latter during his removal is of a nature to make physical violence an imperative necessity. When the conductor, instead of ordering plaintiff to leave the car, employed physical violence, plaintiff then became the injured party; and was justified in defending himself and it does not appear that plaintiff used any more force than was required to free himself from his assailants. Defendant is liable for the wrongful acts of its agents and servants committed in the course and scope of their employment and, under the conceded facts, must be held liable for the damages from the unjustifiable, though not entirely unprovoked, assault of the conductor and motorman in the car.
According to the testimony of plaintiff, the conductor continued to be the wrongful aggressor after plaintiff left the car. His attack was continuous and persistent from the moment the first blow was struck until the shot was fired, for during that whole period he was actuated by the single purpose of inflicting immediate bodily injury upon plaintiff. The momentary pause that occurred while plaintiff was escaping from the car was not due to any relaxation in the conductor’s purpose. ,
But the conductor’s testimony presents a situation radically different from that just reviewed, and defendant was entitled to have its statement of the facts fairly submitted to the jury and to have the cause of action presented in the instructions confined within the limits of that pleaded in the petition. Plaintiff pleaded a continuous assault as the sole basis of his right to recover. The learned trial judge in giving plaintiff’s instruction numbered 6 enlarged the scope, of the cause of action pleaded and declined to correct the error when his attention was called to it by the asking of defendant’s instruction numbered 10. The jury was thus directed to find for plaintiff, either under the hypothesis that the
We therefore conclude that the learned trial judge committed no error in granting defendant a new trial and the judgment sustaining the motion therefor is accordingly affirmed..
(in separate opinion). — As stated by Judge Johnson, tbe plaintiff deliberately violated a proper and reasonable rule of tbe company and was impertinent when remonstrated with by tbe conductor. He testified that be knew he was “acting in absolute disregard of the rules and customs of the company.” He thereby forfeited his right as a passenger and became a trespasser and the defendant’s duty to him as a passenger ceased, and its duty to the public — to the other passengers — began. It was under no further duty as an insurer of a safe alighting of plaintiff. He testified that he started out that night to have “a time” — to have “a little fun;” and that he was drinking in several saloons and at time of the difficulty (about midnight) was on his way to another. It, therefore, may very well have been that the exigencies of the situation were such as to have compelled the defendant’s servants to give him an unsafe alighting. The only obligation defendant was under to plaintiff was to use no more force than was reasonably necessary to put him off of the car, and it is from such standpoint that that branch of the case should be treated. The case of Eads v. Railway, 43 Mo. App. 536, like the one before us, was where the plaintiff’s own testimony placed him in the position of having forfeited his rights as a passenger; while the case of O’Brien v. Transit Co., 185 Mo. 263, on the plaintiff’s testimony, called for a consideration of his rights as a passenger.
It appears from plaintiff’s testimony in this case, that when the fight in the car was over he walked to the platform or vestibule, got off, walked eight or nine feet to the sidewalk, where he stopped, turned around and leaned against an electric pole. He then saw the conductor standing on the back platform and when he had stood leaning against the pole for about a moment the conductor got off the car with the switch bar in his hand and he started to run. That the conductor pursued him to an alley where the second fight, ending with the shooting,, occurred. It seems to me to be clear that when the
It appears from the testimony of the conductor that it was one of his duties to have a. person arrested who conducted himself as he stated plaintiff did. And that in his getting off the car his purpose was to have an arrest made and that in pursuing plaintiff, as he ran, he was engaged in performing a duty to defendant. If he was, then defendant would be liable for any improper and unlawful performance of that duty. But, as the first difficulty was a distinct affair in the pursuit of one purpose and had ended; the second difficulty, in consequence of a different purpose, should be considered from the standpoint of that purpose.
In these suggestions, I have not considered whether plaintiff’s petition covers such a case as I think the evidence makes.