122 Mo. App. 85 | Mo. Ct. App. | 1906
This action is for damages for mistreatment of plaintiff while a passenger on one of defendant’s trains. There was a verdict for the defendant. On plaintiff’s motion, a new trial was granted and from that order defendant has appealed to this court.
It appears that plaintiff and a companion were passengers on defendant’s train. That they took with them into the smoking car some heavy iron tools, such as
There were a great number of instructions given for the defendant. They Avere based upon the general idea that if the rules of defendant prohibited tools from passenger cars and the brakeman requested plaintiff and his companion to take them out of the car and they refused, that then he was justified in throwing them from, the train, regardless of his abusive and insulting language. The instructions do not affirmatively state this, but that is the effect of them under the evidence. They should have been qualified (as Ave shall see further on) by stating in proper Avords that a right to remove the tools did not justify the offensive conduct.
It is insisted by defendant that the evidence conclusively shows the plaintiff cannot recover and that the verdict for defendant should have been permitted to stand, even though there may have been erroneous instructions given. That is a correct statement of law and we will see if it can apply to this case.
But where the charge includes matters of malice, insult or inhumanity, though not connected with bodily injury, mental pain and anguish may enter into- the measure of damages. [Bowling v. Railroad, 189 Mo. 219; Connell v. Tel. Co., 116 Mo. 34; Rawlings V. Railway, 97 Mo. App. 511; Snyder v. Railway, 85 Mo. App. 495; Deming v. Railway, 80 Mo. App. 155; Hickey v. Welch, 91 Mo. App. 4; Trigg v. Railway, 74 Mo. 147; Shellabarger v. Morris, 115 Mo. App. 573.] The law is that though the representative of the carrier of passengers may have the right to eject a passenger, or to remove his property from the car, he must not beat him, nor assault him, neither must he humiliate him by rude, violent and insulting language. -So Avhere the passenger is in the wrong and the carrier in the right as regards the offense or act of the passenger, the carrier may put himself in the wrong by subsequent unjustifiable conduct. Thus for illustration, the carrier should never use more force than is necessary; when he does, he becomes a.'trespasser ab initio. Thus, if a mere trivial first assault is met by a cruel and inhuman beating, not at all necessary for defense from
No point has been made as to the right of the brakeman to go so far as to throw the tools from the running train even though they were in the car against the rules, and we have not considered that as an element in the case, except as it is mentioned in some of defendant’s instructions. It is there submitted that the brakeman had a right to throw them off if invited to do so by plaintiff, or his companion acting for him. It is too apparent for question that the brakeman did not understand that
It is quite reasonable to suppose that the evidence in defendant’s behalf established in the minds of the jury as one of the facts of the case that it was against defendant’s rules to carry the tools in the car into which they were taken, or at least in the aisle of such car, unless with the consent of its agent in charge of the train. If then no consent was given, it was defendant’s right to request that they be removed; and, leaving out of view the question whether there was a right to throw them from a moving train with no opportunity for the owner to get off with them, it was its right to remove them. But in doing so, the act must not be accompanied by violent or menacing conduct, nor by profane or insulting language. The case as now presented is a simple one with really very few issues of fact, which may be readily submitted to the judgment of a jury.
The order and judgment granting a new trial is affirmed.