St. Louis Southwestern Railway Co. v. Berger

Hughes, J., (after stating the facts.) Briefly, the case may be stated as follows: Appellee was a passenger on train of appellant. He was a New York jewelry drummer, and took a seat near a girl of 17 years, a stranger to him. The conductor removed this girl to the rear of the coach. Appellee said to a friend, he would go back, and see why the conductor moved this girl. He went back, sat down by the girl, and began inquiring where she was going, and asked her other questions. The conductor looked at him in a manner that convinced him that the conductor, to say the least, was suspicious of his intentions. From this an altercation ensued, in which appellee struck the conductor first, and in turn the conductor struck him, and beat him with a lantern. There was evidence tending to show that the conductor gave the appellee a serious and severe beating with his lantern, and that the appellee was endeavoring to ward off the blows or protect himself by throwing up his hands; that the brakeman, while this was going on, stood behind the conductor, and twice, when the conductor ceased beating the plaintiff, told him to give him some more, and that thereupon the conductor hit him two more licks. To use his language, “I think he gave him some more twice.” The evidence tended to show that the conductor only stopped beating the appellee because he discovered he was a mason; that “the conductor struck several blows—as many as three to five each time—then he would talk to the plaintiff, and strike him again. The blows were upon the head and shoulders of the plaintiff, who tried to ward them off with his hands. Plaintiff’s hat was knocked off, there was a scalp wound, and the blood ran over his face, hands and clothing. Dr. Webster, who dressed the plaintiff’s wounds, testified: “The wounds were on his head, left shoulder and arms; two or three wounds on the head; his shoulder was pretty badly bruised and finger pretty badly cut. One of the wounds on his head was about two and a half inches long, cut to the skull. The other one was cut to the skull, but was mqre of a puncture, it was probably one-half inch long. The wound on his finger was quite a gash.” On cross examination, he said: “I did not regard his wounds of a serious nature.” There was other testimony tending to show that the beating was severe; in fact very unnecessary to repel the force used by the appellee in slapping the conductor in the face, which, there is proof tending to show, was provoked by the conductor calling the appellee “a son of a bitch.” The appellant contends that, by the instructions of the court, it was left to the jury to decide whether or not the conductor used more force in repelling the assault of appellee than was necessary to protect himself, and that this was error; that the court should have instructed, as appellee asked, that if they found that the conductor used more force than appeared to him necessary, acting as a reasonable man, under the circumstances and surroundings, etc. Conceding that,. as an abstract proposition, the contention is well founded, yet the refusal to so instruct in this case could not be prejudicial, as it is plain, from the testimony, that the conductor did use more force than was reasonably necessary to repel the assault of the appellee. If error, therefore, it is not prejudicial. The appellant contends that if the servant is justifiable, under the law, in what he did, the master is not liable. Very true. “When one is wrongfully assaulted, it is lawful to repel force by force (as also to use force in defence of those whom one is bound to protect, or for keeping the peace), provided that no unnecessary violence is used. * * * We must be content to say that’ the resistance must not exceed the bounds of mere defense and prevention, or that the force used in defence must not be more than commensurate with that which provoked it.” Webb’s Pollock on Torts, p. 255. We think the burden was on the appellant to show that the conductor used no more force than appeared to him, as a reasonable man, necessary to repel the assault(of the appellee. This has not been done. On the contrary, it appears from the eyidence of the appellant, as well as that of the appellee, that the amount of force used by the conductor greatly exceeded that which would appear to any reasonable man to have been necessary to repel the assault made by the appellee upon the conductor, by slapping him in the face with his hand. The appellant also contends that “if the conductor did use more force than seemed to him necessary for his own protection, the appellant, the master, is not liable in damages.” To support this contention, they cite Peary v. Ga. R.& B Co. 81 Ga. 485 (in which no authority is cited to sustain the opinion), and Harrison v. Fink, 42 Fed. 787, a case originating in Georgia, to support which Peary v. Ga. R. & B. Co. is cited. We cannot yield assent to such a doctrine, which is based upon the ground that the injured party is the aggressor; brings on the difficulty. This would exempt a railroad company from liability in a case where, for a simple assault upon a servant, representing the company, the servant might severely and cruelly beat the assailant, a passenger, whom the law makes it his duty not to abuse or mistreat unnecessarily. The rule applicable to such cases is this, that when a prima facie case of 'assault and battery is sought to be justified, it is incumbent upon one who justifies to show that no more force was used than the exigencies of the case called for. The force used must be suitable in kind and degree to the exigencies of the occasion, otherwise the justification fails. Hammon v. Ry., 62 Me. 84; Dillingham v. Anthony (Tex.), 11 S. W. 139. There are objections based on language used in argument by appellee’s counsel, which was perhaps not altogether proper, but we think the case ought not to be reversed on account of it. We do not think it probable that the jury was misled or prejudiced by it. We cannot say that there was an abuse of discretion by the trial court. The verdict was for $700, actual damages, which we do not think excessive. Upon the whole case, finding no reversible error, the judgment is affirmed.