141 Mo. App. 514 | Mo. Ct. App. | 1910
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 one 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 crowded and that John and Ben worked their way toward the front, while plaintiff stood in the rear end. John paid or attempted 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 applied for a continuance wbicb tbe court overruled. Defendant claims to have been aggrieved by this action of tbe court. At a previous term of tbe court tbe defendant bad been granted a continuance on account 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 great 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 whether 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
While 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’Brien v. Transit Co., 185 Mo. 265.] It is the duty of a carrier of passengers to protect them against assaults. [McQuerry v. Railroad, 117 Mo. App. 255.] In a. recent case decided by the St. Louis Court of Appeals, in an opinion by Goode, J., it is held that: “It is the duty of a carrier to protect its passengers from assault by its agents so that a railroad company is liable for damages to a passenger assaulted by a brakeman employed as one of the train crew.” [Keen v. Railroad, 124 Mo. App. 301.]
It would be a strange doctrine that would exonerate a carrier from liability for an assault on one of its passengers by one 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 violation 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 to 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 testimony shows that the assault was made upon plaintiff without any provocation on his part and that his injuries were of an aggravated character. The blow which he received at the hands of the motorman with the instrument named Avas violently 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, 48 Mo. 152.] This is the invariable rule. Finding no error on the trial the cause is affirmed.