This is an action to recover damages for an assault upon the person of the plaintiff by defendant’s motorman.
On August 27, 1907, al about six o’clock in the evening the plaintiff accompanied by his son Ben and brother, John Shelby, boarded оne of defendant’s cars going in a northeasterly direction on Southwest Boulevard, Kansas City, Missouri, intending to transfer at Nineteenth street to a Vine street car going east.
Plaintiff’s evidence is to the effect, that the car was crоwded and that John and Ben worked their way toward the front, while plaintiff stood in the rear end. John paid or attemptеd to pay the fare for the three. At Nineteenth and Main streets a controversy arose between the conductor and John Shelby either over the
Tbe defendant’s evidence tended to show that all tbe Sbelbys were upon and beating tbe conductor at tbe time tbe motorman struck plaintiff. Tbe jury returned a verdict for plaintiff for $1, compensatory damages, and $1,000, punitive damages. Defendant appealed.
Before trial defendant aрplied for a continuance wbicb tbe court overruled. Defendant claims to have been aggrieved by this aсtion of tbe court. At a previous term of tbe court tbe defendant bad been granted a continuance on аccount of tbe absence of another material witness. The application in this particular instance disclosed knowledge of tbe whereabouts of tbe absent witness, but did not state where. Tbe court offered to delay tbe trial for a sufficient length of time to allow defendant to take bis testimony or produce him in court. Tbe defendant declined tbe offer of the court and insisted on a continuance. Tbe court in our opinion acted with greаt liberality towards defendant, and exercised a most wise discretion. It goes without saying that tbe granting of continuances is a matter largely in tbe discretion of tbe court.
Tbe principal question raised on .the appeal is whethеr plaintiff was entitled to go to tbe jury on bis evidence. Tbe defendant insists that tbe motorman at tbe time be struck plaintiff was not acting within tbe
Whilе such is the well-established rule governing the relation of master and servant as to third persons, it does not apply in relation to the duties of the servant of the carrier of passengers. In such cases the liability of the carrier arises not out of the relationship of master and servant, but out of the relation of carrier and passenger. [O’Briеn v. Transit Co.,
It would be а strange doctrine that would exonerate a carrier from liability for an assault on one of its passengers by оne of its train crew on the ground, that while so doing he was not acting'within the scope of his employment. It would be a viоlation of the universal
We have examined defendant’s objections to the giving of certain instructions on behalf of plaintiff and the refusal of the court to give certain instructions as asked by defendant and find them tо be without merit.
Finally it is contended that the evidence did not justify the court in submitting to the jury the question of punitive damages. Plaintiff’s tеstimony shows that the assault was made upon plaintiff without any provocation on his part and that his injuries were of аn aggravated character. The blow which he received at the hands of the motorman with the instrument named Avas viоlently and wantonly administered. It is held that, “In all actions of tort, whether for assault and battery, or for . . . where there are circumstances of oppression, malice or negligence, exemplary damages are allowed, not only to compensate the sufferer, but to punish the offender.” [Buddy v. Knapp,