186 Mo. App. 381 | Mo. Ct. App. | 1914
— This is a suit for personal injuries inflicted on plaintiff growing out of assaults on him by defendants ’ brakeman while the relation of carrier and passenger existed between plaintiff and the railroad company being operated by defendants as receivers. The petition is in two counts, covering separate assaults by the same employee of the defendants, the first occurring while plaintiff was' attempting to board one of defendants ’ passenger trains at Kennett, Missouri, and the other about fifteen to twenty minutes later while the plaintiff was riding as a passenger on the same train.
The plaintiff, whose place of business was at Ken-nett, Missouri, purchased a ticket there one Sunday morning in order to go to Holcomb, Missouri, a few miles distant, to visit' his mother. When the passenger train stopped and the passengers getting off there had alighted, the plaintiff, with other passengers, started to board the train. Defendants had a rule requiring all intended passengers to exhibit their tickets before boarding the cars. The defendants’ brakeman assisted those getting off and took his position at the foot of the steps leading up1 to the passenger coach to enforce this rule and look after the loading of the passengers. Some three or four young ladies passed up the steps just ahead of the plaintiff and the brakeman says that one of them being without a ticket designated the plaintiff as having her ticket and he al
If plaintiff ’s version of the affair is correct, and the jury has so found, then the brakeman was to blame in every way, as he not only wrongfully prevented
On this branch of the case the court instructed the jury that if the plaintiff had purchased Ms ticket entitling Mm to transportation and that4 ‘ while attempting to board said train in the usual and ordinary manner, he was struck on the head, arms, breast or body by an agent and employee of the defendants-, and that such striking, if you find such to be a fact from the evidence, was not justifiable, and you further find that he was injured by said assault, then your verdict will be for the plaintiff.” For the defendants, the court instructed that if “before plaintiff had boarded said train, the plaintiff and defendants’ brakeman engaged in a controversy as a result of a mistake on the part of said brakeman as to plaintiff’s right to board said train, and during such controversy the plaintiff struck the brakeman, then you are instructed that said brakeman had the right to defend himself, and to use such force as was reasonably necessary to repel plaintiff’s assault, and if you further find that said brakeman used no more force than was reasonably necessary for that purpose, then plaintiff cannot recover on the first count in his petition, but your verdict should be for the defendants on said first count.”
The defendants’ first point is that the plaintiff was the aggressor and that, notwithstanding the defendants’ duty to plaintiff as a passenger, the brakeman had a right to defend himself from plaintiff’s assault and that a demurrer should have been sustained to this count on the authority of O’Brien v. Transit Co., 185 Mo. 263, 269, 84 S. W. 939, and Breen v. Transit Co., 108 Mo. App. 443, 451, 83 S. W. 998, There is substantial evidence, however, that the brakeman was the aggressor in this assault, as well as being in the wrong in attempting to prevent plaintiff from going into the car, and the court did right in submitting the question to the jury as it did in both of the cases just cited.
Plaintiff’s instruction, above mentioned, is criticised as submitting to the jury a mixed question of law and fact, whether the brakeman’s assault on plaintiff was justifiable and that the jury should have been told what facts would constitute a justification. An instruction similar to this, and equally as objectionable in this respect, was held not to constitute error in Sonnen v. Transit Co., 102 Mo. App. 271, 274, 76 S. W. 691. We approve what the court there said. “Two opposing theories of the assault are presented by the pleadings and the evidence; the plaintiff’s, that an unprovoked assault was made upon him,'the defendant’s, that the assault was justified. It was the duty of each party to the suit to take care of his own side of the case and to offer instructions covering his theory of the case as set out in his pleadings and sustained by his evidence. The instruction under review comprehends very fully all the facts which plaintiff relied on and which entitle him to the verdict, and is supported
The defendants do not attempt to justify the second assault made by this brakeman on the plaintiff. It occurred on the train and in what is termed the ladies’ coach some fifteen minutes after the first assault. After the first difficulty with plaintiff, the conductor interfered and sent the brakeman to do some other work and permitted plaintiff to enter the passenger1 coach. The plaintiff, after washing off the blood from the first encounter, took a seat with a friend therein and the train proceeded on its way. The tickets were taken up by the conductor and it is significant that no young lady was found therein without a ticket. This brakeman, though admonished by the conductor not to. have any further difficulty, deliberately hunted up the plaintiff for the avowed purpose of “whipping him if he could.” He seems to have been smarting because of the unsatisfactory termination of the first difficulty and made up his mind, as he expressed' it, that no man “could hit him on the nose and get away with it.” When he located plaintiff on the seat in the passenger coaeh, he asked him if he was the man who hit him at the steps and on plaintiff answering in the affirmative again assaulted him and, as he says, hit him full in the face. Plaintiff says, however, that he dodged this blow and that it did not injure him as seriously as was intended. These parties had to be again separated to end this fight. There is no doubt that this second assault was deliberate, unprovoked and for revenge. The defendants’ only attempt at a justifica
The plaintiff’s instructions are also criticised as being misleading on the measure of .damages. The instructions covering plaintiff’s case on each count, and authorizing a recovery on the facts hypothesized, wind up by saying, “and you should assess his damages at such sum as in your judgment will compensate him for the injuries so received, if any, by virtue of said assault not to exceed the sum of $2000; the amount sued for. These instructions are not erroneous in their general scope and are such as have often been held sufficient on plaintiff’s part and leave to the defendant the privilege and duty, if he desires to do so, to ask more definite and explicit instructions pointing out the proper elements of damages and excluding any improper element. [Smith v. Fordyce, 190 Mo. 1, 30, 88 S. W. 679; Strayer v. Railroad, 170 Mo. App. 514, 529, 156 S. W. 732; Powell v. Union Pac. R. Co., 255 Mo. 420, 164 S. W. 628.] Plaintiff’s third instruction is likewise g-eneral as to' the actual damages, and, without limiting the amount to that sued for, then predicates the elements of wantonness and wilfullness authorizing an award of punitive damages. The error in this instruction in not limiting the amount of actual damages to the amount sued for is rendered harmless by the fact that the jury rendered'a verdict for a much less amount, to-wit, $250.
We have also considered the question of excessive actual damages on each count, but, considering the fact that the jury must be given a large discretion in awarding damages for personal injuries and that these successive assaults were made at a public place and that the jury properly considered plaintiff’s wounded feelings, humiliation and disgrace as elements of actual
It results that the judgment is affirmed.