McDonald v. St. Louis & San Francisco Railroad

NORTONI, J. (after stating the facts). — All the evidence tends to prove, and indeed it is conceded throughout the case, that the train on which plaintiff took passage was an extra on which the carriage of passengers.was prohibited. From plaintiff’s evidence alone it appears that the relation of passenger and carrier did not subsist between him and defendant. Plaintiff says that, being without sufficient means to pay the regular passenger fare, he entered into an arrangement with the conductor of the freight whereby he was to be carried from Cape Girardeau to Crystal City on the payment of twenty-five cents. Bnt this arrangement involved his carriage in a freight car. While it does not appear conclusively plaintiff knew the carriage of passengers was prohibited on this particular train, it is obvious that he did not become a passenger by merely paying a bribe of twenty-five cents to the conductor and accepting passage in the freight car in no sense designed for pas — 104 — senger service. At most, plaintiff • was not a trespasser, but, instead, occupied that relation which, attends one upon the train, who does not know that he is violating the rules of the carrier, and relies upon the consent of the conductor. This being true, the duty of extraordinary care and other incidents to the relation of passenger and carrier does not obtain in the case, but, instead, it devolved upon defendant only to exercise ordinary care for plaintiff’s safety while in transit and during his ejection or until he had safely alighted from the train. Such we deduce from the following authorities to be the rule of decision which obtains in the jurisprudence of this state: Whitehead v. St. L., I. M. & S. R. Co., 99 Mo. 263, 11 S. W. 751; Berry v. Mo. Pac. R. Co., 124 Mo. 223, 25 S. W. 229; O’Donnell v. K. C., etc. R. Co., 197 Mo. 110, 95 S. W. 196. But it is argued by defendant that though it owed plaintiff the duty to exercise ordinary care for his safety, the court should have- directed a verdict for it, because the evidence conclusively shows that no-injury was inflicted upon him until after he had been ejected in safety. In this connection it is urged that the duty which obtains between carrier and passenger and requires the carrier to exercise high care to save .the passenger from the insults or assaults of its own servants and others may not be invoked. Of course, this proposition is to be conceded, for, unless the relation of carrier and passenger exists, the obligations incident thereto are wholly beside the case. But though such be true, defendant is liable to respond for the wrongful acts of its servant’s, committed within the scope of their authority while pursuing the-master’s business, even though such acts are wanton and willful and in no sense directed by the master as-to the particular manner of conduct. [See Bouillon v. Laclede Gas Light Co., 148 Mo. App. 462, 129 S. W. 401; Haehl v. Wabash R. Co., 119 Mo. 325, 24 S. — 105 — W. 737.] The record abounds with evidence to the effect that, among other things, it was the duty of Allison, defendant’s brakeman, and its conductor, too, for that matter, to eject persons from the train when found riding thereon. Obviously, then, defendant may be required to respond to plaintiff for any injury which he suffered at the hands of the brakeman, Allison, or the conductor, Gribson, or the other brakeman, through the breach of the obligation to exercise ordinary care for his safety or because of their wanton and willful conduct thereabout. But defendant’s responsibility touching this matter proceeds in accord with the principle respondeat superior and rests upon the law of agency, wholly irrespective of the relation of passenger and carrier. [See Farber v. Mo. Pac. R. Co., 116 Mo. 81, 22 S. W. 631; Whitehead v. St. L., I. M. & S. R. Co., 22 Mo. App. 60, 63.] It is true that none of the injuries inflicted upon plaintiff was suffered by him while in the car, but it appears from his testimony that the brakeman,. Allison, entered the car and sought to eject him therefrom while the train was in motion. Plaintiff says Allison demanded money from him, and, upon his refusal to pay, ordered him to jump from the car, and fired several shots át his feet with a revolver in attempting to enforce the order. During this controversy plaintiff obtained possession of Allison’s pistol and ejected him from the car instead. The box car in which plaintiff was riding was next adjacent to the caboose on the train, and it appears that both Allison and the other brakeman assumed positions on the steps annexed to the front platform of the caboose, with guns, as though they intended to inflict injury upon plaintiff. Plaintiff says as he looked out ■of the ear he observed these men so stationed while the train moved along, just prior to reaching Neely’s Landing. From this it is obvious that, besides the assault commenced by Allison in the car, defendant’s — 106 — other brakeman was at least consenting thereto and omitted to exercise any care whatever concerning plaintiff’s safety. Bnt be this as it may, plaintiff was in no respect injured while in-the car nor in the initial attempt of Allison to eject him therefrom, and it must be conceded that all of the injuries for which compensation is sought were received thereafter. After conceding such to be true, for it is, we are not permitted to accept defendant’s argument in its fullest scope, and declare that it conclusively appears plaintiff had been ejected with safety before the assault was made of which he complains. According to plaintiff’s evidence, the trainmen on the caboose, that is, the brakeman, Allison, and his companion, were standing ready to participate in his ejection as the train approached Neely’s Landing. Immediately upon the stopping of the train, the conductor approached and ordered plaintiff to alight from the car. Plaintiff says the conductor tossed the twenty-five cent piece to him and ordered him to “fall out” of there. In obedience to this command, plaintiff stepped from the car and was assaulted while in the act. Plaintiff says, “I got out and when I first lighted a lick hit me in the back of the head. I was right at the car door in front of the station door but didn’t know what brakeman it was. He hit me in the back of the head with the gun he had and gave me a punch and I didn’t look around but went straight to that woman’s house.” Prom this it appears that the assault which Allison had commenced in the car was followed up by one of defendant’s brakemen while plaintiff was in the act of alighting from the car in obedience to the command of the conductor. Obviously, both the conductor, who ordered plaintiff out of the car, and the brakeman, who assaulted' him while he was stepping therefrom, were acting in the line of their duty about the master’s business, in ejecting plaintiff from the train. It appears, then, the assault which, according to the evidence of plain — 107 — tiff, seems to have continued without perceptible intermission, was first made by defendant’s brakeman while acting within the scope of his authority about the master’s business, pertaining to ejecting plaintiff from the car. This being true, defendant is prima facie liable for the wrongful and willful acts of its servants in pursuing and shooting plaintiff thereafter, for, where an agent begins a quarrel while acting within the scope of his agency, the master may be required to respond for his subsequent wrongful acts pertaining to the same matter, as the law will not undertake to say when he ceased to act as agent and commenced to act'upon his own responsibility. Touching such a matter, the question is essentially one for the jury and may not be summarily determined as a matter of law. [See New Ellerslie Fishing Club et al. v. Stewart, — Ky. App. —, 93 S. W. 598, 9 L. R. A. (N. S.) 475.] Where the relation of passenger and car-rier subsists, numerous authorities declare the rule that the carrier may be required to respond for such wrongful assaults of its servants commenced upon the train and pursued for a considerable distance be yond the carrier’s premises. Especially is this true where the subsequent wrongful acts are a continuation of the original assault. [See Savannah R. Co. v. Bryan, 86 Ga. 312; Flynn v. St. Louis Transit Co., 113 Mo. App. 185, 87 S. W. 560; McQuerry v. Metropolitan St. R. Co., 117 Mo. App. 255, 92 S. W. 912.] We perceive no valid reason why the identical rule should not obtain here, for while the carrier owes the passenger an extraordinary duty pertaining to his safe carriage and protection, in either case, on the last analysis, responsibility is entailed under the principle respondeat superior, which obtains only in the-relation of master and servant. Because the evidence tended to prove that the assault was initiated in the authority of the master, we believe the question of defendant’s liability touching the same and its con — 108 — tinuity was fox* the jury and that the court did not err in declining to direct a verdict for defendant. The first instruction given at plaintiff’s instance is as follows: “The court instructs the jury that although they find and believe from the evidence that under the rules of the railroad company plaintiff had no right to ride as a passenger on said train from which he was forced to alight (if yon find from the evidence that plaintiff was forced to alight therefrom), yet,.if yon further find and believe from the evidence that plaintiff boarded said train at Cape Girardeau, Missouri, with the consent and permission of the conductor in charge of said train, then in that case plaintiff was not a trespasser on said train, if you believe that he did not know that the conductor had no authority to permit him to ride on the train, and defendant and its employees in charge of said train owed plaintiff the duty of ordinary care. -If, therefore, yQU further find and believe from the evidence that the agents, servants and employees of defendant railroad company on or about the 8th day of March 1910, who were in charge of said train, or any of them, while engaged in the business of the defendant railroad company, and while acting within the scope of their employment, ejected or caused plaintiff to leave said train, and in doing so, willfully and wantonly, or maliciously beat and shot the plaintiff, or that the said servants and employees of defendant assaulted the plaintiff at the time or immediately after plaintiff left said train, and followed plaintiff up and shot him, plaintiff, after he left said train, in a willful, wanton or malicious mannex-, and the plaintiff was Injured thereby, then the defendant is liable, and your verdict must be for the plaintiff.” This instruction is erroneous in that it submitted to the jury as a predicate of liability the acts of defendant’s servants “immediately after plaintiff left said train,” without calling for a finding as to whether or not such acts were a — 109 — continuation of the assault commenced while plaintiff was being ejected or as he alighted from the car. The words referred to we have italicized in the instruction. For defendant the evidence tends to prove that no assault whatever.was made upon plaintiff while he was being ejected from the train. Though the evidence for defendant concedes that Allison, the brakeman, entered the car, as testified by plaintiff, and engaged in a controversy with plaintiff therein, during which plaintiff disarmed him and took possession of his pistol, it tends to prove, too, that Allison did not assault him even at that time. Furthermore, all of the evidence on the part of defendant tends , to prove that no assault whatever was made upon plaintiff at the time he alighted from the car at Neely’s Landing. On defendant’s theory of the case, which the evidence for it tends to support, plaintiff alighted from the car upon the order of the conductor and crossed the road to the residence of Mr. Fulbright, defendant’s station agent, about fifty yards away. Upon reaching this residence, plaintiff was observed by Allison and others to be standing in the door engaged in conversation with Mrs. Fulbright, whereupon Allison and another man entered defendant’s station and informed Mr. Fulbright that plaintiff, a “bad nigger” with a gun, was at his house. Upon this information being imparted, Fulbright, Allison and others armed themselves and commenced the assault which resulted in the several injuries complained of. Though Fulbright was defendant’s station agent, no one suggests it is liable for his acts touching this matter, and it cannot be that either he or Allison was representing defendant at this time, that is, if the evidence for defendant is found to be true. The instruction is erroneous under the facts last stated, for it authorized a recovery if the jury found that plaintiff was assaulted immediately after leaving the train without regard to the fact that it was — 110 — essential to affix liabaility that the assault should have been commenced while defendant’s servants were engaged in the line of their duty about the master’s business in ejecting plaintiff from the car. Touching this matter, the instruction is misleading in that it submits a predicate of liability not sufficiently comphehensive. Plaintiff’s instruction No. 2 is as follows: “The court instructs the jury that although they may find and believe from the evidence that the train upon which plaintiff was riding was not, under the rules of the railroad company, allowed to carry passengers, yet if you further find and believe that plaintiff without any knowledge of said rules got on said train at Cape Girardeau, Missouri, with the consent of the conductor of the defendant who was in charge of said train, then and in that case plaintiff was not a trespasser against said defendant; and if you further find and believe from the evidence that the agents and employees of said railroad company in charge of and controlling said train, or any of them-, ejected plaintiff from said train, or caused plaintiff to leave the same, and in doing so, and at the time thereof, and immediately thereafter wrongfully, willfully, maliciously and unlawfully assaulted plaintiff by beating him, and by shooting plaintiff with deadly and dangerous weapons, and plaintiff was injured thereby, then the defendant is liable, and your verdict must be for the plaintiff. ’ ’ The words, ‘ ‘ and immediately thereafter, ’ ’ which we have italicized in this instruction are unobjectionable, for though they permit a recovery for acts occurring immediately after the ejection they require, through the use of the conjunctive “and,” a finding that the assault was commenced while the servants were acting within the scope of their authority in affecting the ejection. Plaintiff’s' third instruction is objectionable for — 111 — the same reasons above pointed out, touching instruction No. 1. Plaintiff’s sixth instruction is erroneous in that it authorized a recovery for plaintiff if the jury found the conductor while acting within the scope of his authority used unnecessary and wrongful means in ejecting plaintiff from the train and continued such wrongful acts without intermission from the time he alighted, etc. There is not a word of evidence in the record tending to prove that the conductor assaulted plaintiff in any manner. It appears from the evidence of plaintiff that the conductor was seen with a gun after the plaintiff had repaired to Fulbright’s house, but this is all that is said concerning even threatening conduct on his part. Until then the conductor did no more than order plaintiff from the car. It may be that he was remiss in his duty to exercise ordinary care in preventing the brakeman from assaulting plaintiff in his presence, but the instruction in no sense reckons with a breach of this obligation. This instruction should be redrafted to require a finding according to the evidence. Plaintiff’s instruction No. 4, on the measure of damages, is erroneous in two respects: First, it authorizes the jury to estimate as damages the extent, if any, to which plaintiff has been “prevented by reason of his injuries from working and earning a livelihood for himself and family.” 'This element of damage is the legal equivalent of compensation for loss -of time occasioned by the injury and as such-is an item of special damages which may not be recovered unless claimed in the petition. [See Slaughter v. Metropolitan St. R. Co., 116 Mo. 269, 23 S. W. 760; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S. W. 583.] The petition lays no claim for damages on this score, and it was, therefore, error to submit the matter to the jury. The petition lays a claim.of $300, expended for medical and surgical attendance. The instruc — 112 — tion now under consideration authorizes a recovery for the reasonable value of the “necessary medical aid rendered to plaintiff” without limiting such recovery to the amount specified in the petition. In this respect it infringes upon prior decisions of this court and the Supreme Court, touching the same question. [Shinn v. United Rys. Co., 146 Mo. App. 718, 125 S. W. 782; Smoot v. Kansas City, 194 Mo. 513, 92 S. W. 363.] Plaintiff’s instruction No. 5 is as follows: “The court instructs the jury that ordinary care means such care as persons of ordinary prudence, under the same or similar circumstances, would use; therefore the court further instructs you that if defendant’s servants in charge of and in control of said train from which plaintiff was ejected (if you find from the evidence that plaintiff was ejected from said train), could by the exercise of ordinary care, as herein defined, have prevented plaintiff’s injuries, or if you find that plaintiff was willfully, wantonly or maliciously injured by the servants and employees of defendant while acting within the scope of their employment, as set out in the other instructions herein, and as a re.sult of such injuries so inflicted, the plaintiff was damaged, then the defendant is liable, and your verdict must be for the plaintiff.” All of plaintiff’s injuries were received by him after he had been ejected from the train, unless it be'the blow in the back of the head from the pistol in the hand of the brakeman as he alighted. Without doubt it was the duty of the conductor then present to exercise ordinary care to prevent the brakeman from assaulting plaintiff, and defendant may be required to respond, too, because of the wrongful act of the' brakeman in thus assaulting plaintiff at that time, for his ejection from the car was then in progress. But the instruction above copied reckons with and imports the obligation of ordinary care against defendant quite beyond this sitúa — 113 — tion and beyond subsequent occurrences where the conductor might have prevented the continuing assault of the brakeman. This instruction authorizes the jury to find for plaintiff if it should appear that defendant’s servants in charge and control of the train from which plaintiff was ejected could, by the exercise of ordinary care, have prevented plaintiff’s injuries and this, too, without regard to the fact that in no sense could defendant be liable therefor unless such injuries w;ere inflicted by its servants during the continuing assault which was initiated while they were acting within the line of duty about the master’s business in ejecting plaintiff from the car. The proof is, that a number of citizens at Neely’s Landing joined in the chase after plaintiff, and besides these, Mr. Seagraves, a foreman of defendant’s bridge carpenters, and Fulbright, the station agent, joined too. While defendant may be liable for all of the injuries which resultedffrom the acts of these joint tortfeasors, because of the independent liability of one tortfeasor for the joint tort of all, provided its agents were acting within the scope of their authority in committing the tort, it is obvious it did not owe the duty to exercise ordinary care toward preventing others from assaulting plaintiff after he had left the train, if its agents were not representing it in the transaction. As worded, the instruction would seem to impose the obligation on defendant to exercise ordinary care to the end of preventing plaintiff’s injuries at all hazards and this cannot be the law of the case. Plaintiff dismissed the first count of his petition and the recovery was had on the second count only. The petition is inartificially drawn and the second count at least suggests a breach of the obligation on which the carrier owes the passenger. No one can doubt that it defectively states the cause of action revealed in the proof, but it may be amended if plain — 114 — tiff is so advised. For the future guidance of counsel, we may be pardoned in suggesting that it is important to invoke tbe doctrine with respect to master and servant. It would be well if tbe amended petition should be drawn so as to more specifically aver tbe assault made upon plaintiff by defendant’s servants was committed by them while in tbe line of their duty and in pursuit of tbe master’s business in ejecting plaintiff from tbe train. Because of tbe errors above pointed out, tbe judgment should be reversed and tbe cause remanded. It is so ordered. Reynolds, P. J., and Caulfield, J., concur.