Flynn v. St. Louis Transit Co. , 113 Mo. App. 185 ( 1905 )

BLAND, P. J.

(after stating the facts). — 1. Defendant moved for a compulsory nonsuit. The refusal of the court to grant this motion is assigned as error., The contention is that the plaintiff’s injuries; were inflicted by tbe conductor after tbe relation of carrier and passenger, as between plaintiff and defendant, bad terminated. Tbe evidence of plaintiff tends to show that tbe plaintiff was first assaulted by tbe conductor while be was on tbe car and was pushed or thrown off tbe car, and that tbe assault was unprovoked. This evidence of itself justified tbe court in refusing a compulsory non-suit. It is true, as contended by defendant, that tbe evidence shows tbe principal injury to plaintiff was caused by tbe kick, and that plaintiff was off tbe car and in tbe street when the kick was administered. But plaintiff’s ■evidence tends to show that be did not leave tbe car voluntarily but was pushed off by tl: 3 conductor and that big umbrella was still on tbe platform,' and be was kicked while attempting to take bis property from tbe car. In these circumstances it cannot be said that plaintiff’s status as a passenger bad entirely ceased and that defendant bad discharged its whole duty to him by seeing him safely off tbe car. Tbe evidence shows that tbe difficulty was begun on tbe car and that plaintiff was first assaulted by tbe conductor while be was a passenger on tbe car; and the time between tbe first assault and the ending of it in tbe street, when tbe conductor was induced to desist from beating tbe plaintiff, is too inappreciable to split tbe transaction into two parts. The evidence tends to show tbe wrong was a continued one. Nor do we think tbe evidence shows that plaintiff bad entirely ceased to be a passenger at tbe time be was kicked. Plaintiff had the unquestionable right to take bis umbrella from tbe car, and having been pushed from tbe car without it be bad tbe right to return for it.

In Ormond v. Hayes, 60 Tex. 180, it was held: “Tbe relation of carrier and passenger does not necessarily cease where tbe later alighted from tbe car and still aids tbe carrier’s servants in removing his baggage from tbe car.”

In Chicago Terminal R. R. Co. v. Schmelling, 197 Ill. 1. c. 629, quoting from 4 Elliott on Eailroads, section 1592, and Pennsylvania Co. v. McCaffrey, 173 Ill. 1. c. 173, the court said:

“This relation between a passenger and a-railroad company does not cease upon the arrival of a train at the place of the passenger’s destination, but the company is still bound to furnish him an opportunity to safely alight'from the train. It is its duty, not only to exercise a high degree of care while the passenger is upon the train, but also to use the highest degree of care and skill, reasonably practicable, in providing the passenger a safe passage from the train.”

In Houston & T. Cent. R. Co. v. Batchler, 73 S. W. (Tex) 981, it is said: “The relation of carrier and passenger continues not only until the passenger has left the car, but until he has left the station, or until a reasonable time has been given him to leave the premises.”

In Savannah Railroad Co. v. Bryan, 86 Ga. 312, Bryan, a passenger, was kicked off the car by the conductor. Bryan then immediately repaired to the office of the company for the purpose of making complaint to the superintendent. He reached the office in eighteen or twenty minutes. The conductor arrived at or about the same time and again kicked him and hit him with his fists and cut him with a knife. It was held that the company was liable for both assaults.

In Wise v. Covington and Cincinnati Street Railway Company, 91 Ky. 537, it was held: “Where a passenger on a street car leaves the car because he is insulted and abused by the driver, and is pursued and beaten by the driver in the street, it must all be regarded as one continuous wrong, and the railway company is as much liable as if the beating had taken place in its car.”

2. Defendant asked the following instruction:

“The jury are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. In determining as to this, you have a right to , consider the interest of the witness, if any, in the result of the suit, his manner on the witness stand, the probability or improbability of the matters to which he testified and all the facts and circumstances surrounding him. And if you believe that any witness has knowingly testified falsely as to any material fact in this cause, you are free to disregard the whole or any part of the testimony of such witness.”

The court modified the instruction by striking out the last clause, and gave it thus modified. Defendant contends that the instruction should have been given as asked. No witness was impeached by evidence of his bad character for truth or veracity or by showing that he had made statements out of court inconsistent with his evidence. It is true there was a good deal of conflict in the evidence and the court would have been justified in giving the instruction as asked, but in view of what was given touching the duty of the jury in weighing the evidence and in passing on the credibility of witnesses, we do not think it was reversible error to refuse to instruct the jury that if it believed any witness had knowingly testified falsely to any material fact in issue, it was at liberty to disregard the whole or any part of the testimony of such witness. Experience teaches that such a direction to an intelligent jury is comparatively useless, for if the jury believe a witness has willfully testified falsely to any material fact in issue, it will, if he- is not corroborated, without any instruction from the court, disregard his entire evidence when it comes to make up its verdict. The giving or refusing of such an instruction rests very largely in the discretion of the trial court (State v. Hickman, 95 Mo. 322, 8 S. W. 252) ; and we do not think the modification of the instruction was such prejudicial error as to require a reversal of the judgment.

3. The defendant asked the following instruction, which the court modified by striking out the phrase “and no other cause” and gave it as modified:

“The burden is upon the plaintiff to prove not only that the alleged assault of which he complains was committed under such circumstances as to render defendant responsible therefor, but the burden is upon the plaintiff also to establish by the evidence that his alleged injuries are the direct and natural result of such assault and of no other cause, and on this head the court instructs you that it is not sufficient for the plaintiff to prove that his present condition was possible or even probably due to the alleged assault. Ton must believe from the evidence that it is the result of such assault.”

The instruction as asked is too broad. There is no evidence tending to show that defendant’s old age contributed to but one of the weaknesses of which he complains as resulting from the injury, and if the defendant desired the benefit of this evidence it should have asked an instruction limiting this feature of the evi•dence to the particular weakness to which it contributed.

The defendant asked and the court refused the following instruction:

“The court instructs you that while plaintiff was riding as a passenger on defendant’s car, it was his duty to deport himself in an orderly manner and in no way to interfere with the conductor’s control and management of said car, and if you believe from the evidence that plaintiff did interfere with the conductors control or management of said car by seizing the bell rope or cord and pulling the same, and although requested by said conductor to desist from such interference, said plaintiff ignored such request and continued to hold onto and pull such rope or bell cord in defiance of said request of defendant’s conductor, then said conductor in charge of said car had the right to remove plaintiff from such interference with his control and manage-men of said car, and if in so removing plaintiff from the bell cord or rope and consequent interference with the control and management of said car, said conductor used no m.OT*e force than was apparently necessary to so remove said plaintiff, and plaintiff because of such effort on tbe part of the conductor to so remove him from said rope or hell cord and conseqent interference with the control and management of said car, either struck or attempted to strike the conductor, then the conductor had a legal right to defend himself against such assault in whatever manner was apparently necessary to prevent plaintiff from doing him bodily harm, and if the jury find that the assualt complained of by the plaintiff occurred under the circumstances and in the manner above set forth, then the court instructs you that defendant St. Louis Transit Company is not responsible for the consequent injury to plaintiff, and your verdict must he for the defendant St. Louis Transit Company.”

The instruction is faulty in that it leaves entirely out of view the conductor’s evidence that after he was struck by plaintiff with the umbrella, he followed plain- ' tiff into the street and continued the assault upon .him when he was retreating from the car; this was not done by the conductor in his necessary self-defense. It is also erroneous in assuming that the conductor requested plaintiff to desist from pulling the bell rope. There is no evidence found in the record that any such request was made. We think, therefore, the court properly refused the instruction in the form in which it was presented. The answer alleged a good defense and there is some evidence tending to support it, or at least to greatly mitigate the damages; but the instructions asked by defendant, which were refused by the court, were all based on the theory that the difficulty on the car and the assault in the street were two separate and distinct difficulties and that the defendant was not liable- for the assault made in the street. As we have seen (first paragraph opinion) that this is an erroneous view of the case, as shown by the evidence, we think all of defendant’s refused instructions were properly refused.

4. It is. insisted by defendant that the. verdict is against the greater weight of the evidence. The evidence is conflicting; that of plaintiff tends to show that the conductor made an unprovoked assault upon him; that of the defendant tends to show that plaintiff not only provoked hut began the fight. This conflict in the evidence was for the jury to settle and this court will not interfere with its findings, although it may appeal to it that the preponderance of the evidence is against the tinging of the jury. [Chitty v. Railroad, 166 Mo. 435, 65 S. W. 959; Redman v. Adams, 165 Mo. 60, 65 S. W. 300; Corrigan v. Kansas City, 93 Mo. App. 173.]

Discovering no reversible error in the record, the judgment is affirmed.

All concur.