Green v. United Rys. Co. of St. Louis. to leave the car after it stopped for that purpose, he was in the wrong in failing to do so; and it was lawful for the conductor to eject him, using no more force than was reasonably necessary for that purpose." In this connection see also: Davis v. Railroad, 53 Mo. 317; Cave v. Railway, 94 S. C. 282, 54 L. R. A. (N. S.) 915; Rossman v. Railway & Power Co. (Ga.), L. R. A. 1917 C. 483; Rahilly v. Railroad, 66 Minn. 153; St. Louis, etc., R. R. Co. v. Leigh, 45 Ark. 368; Kirk v. Electric Co., 58 Wash. 283, 31 L. R. A. (N. S.) 991; 4 R. C. L., p. 1104, sec. 555. In Davis v. Railroad, supra, plaintiff refused to give up his railway ticket until such time as he was provided with a seat. He later obtained a seat but refused to surrender his ticket or pay full fare for the entire journey, and was ejected from the train. It was held that the ejection was lawful; that if there was a noncompliance by the carrier with any of the terms of the contract of carriage in any essential particular, and plaintiff was unwilling to accept the company's part performance thereof, it was his duty to abandon the contract and quit the train as soon as a suitable opportunity was afforded; that he would not be permitted "to grasp that contract's benefits with one hand while he shirks and repudiates its burdens and liabilities on the other." For respondent it is argued, among other things, that since the evidence shows that the conductor refused to issue the transfer in any event, a tender would have been unavailing, and hence defendant cannot justify the ejection upon the theory that an unconditional tender was not made. The doctrine thus sought to be invoked has, we think, no application to the facts of this case. The argument might be sound enough were we merely passing upon plaintiff's right to receive the transfer demanded; but we are here concerned with the question as to whether defendant was lawfully entitled to eject plaintiff from the car under the circumstances. And for the reasons stated above we think that the ejection was lawful if no unnecessary force was used. Green v. United Rys. Co. of St. Louis. But though defendant was entitled to eject plaintiff, if unnecessary force was used in so doing whereby plaintiff was injured defendant is liable to respond in damages therefor. Plaintiff alleges in his petition that unnecessary force was used, and his evidence tends to support this allegation and to show that he received at least some injury. He was entitled to go to the jury upon this issue, but the instruction given at his instance on the measure of damages is erroneous in allowing a recovery not only for his alleged injuries but for humiliation. According to plaintiff's own evidence he invited ejection from defendant's car. He went thereupon, armed with the "law," to demand what he conceived to be his rights, for the purpose of either obtaining the desired transfer or compelling defendant to put him off the car. His testimony shows clearly that it was his purpose to make the conductor lay hands upon him and eject him from the car in order to lay the foundation for this action. Under such circumstances no recovery may be had for humilation or disgrace by reason of being ejected in the presence of passengers or others. [See Brenner v. Jonesboro, etc., R. R. Co., 82 Ark. 128, 100 S. W. 893, 9 L. R. A. (N. S.) 1060.] It is argued by appellant that plaintiff is likewise entitled to recover no punitive damages in the case, because of the fact that he thus invited ejection from the car. This we think does not follow. The decision of this court in Mitchell v. Railways Co., 125 Mo. App. 1, 102 S. W. 661, cited by appellant, is not, we think, here in point. From what we have said above it follows that plaintiff is not entitled to punitive damages by reason merely of having been ejected from the car. For mere ejection without the use of unnecessary force he can recover neither actual nor punitive damages. However, if, upon a new trial, the jury find the facts in his favor respecting the use of unnecessary force, plaintiff is entitled to recover compensatory damages for his actual physical injuries, if any, and likewise punitive damages in the discretion of the jury. Such unnecessary force, if any, would amount to an un Am. Auto. Ins. Co. v. United Rys. Co. of St. Louis. warranted assault, justifying the assessment of punitive damages, should the jury see fit to award the same, as for the doing of a wrongful act without just cause or excuse. The judgment will accordingly be reversed and the cause remanded for a new trial in accordance with the views expressed above. It is so ordered. Reynolds, P. J., and Becker, J., concur. AMERICAN AUTOMOBILE INSURANCE CO., Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant. St. Louis Court of Appeals. Opinion Filed November 6, 1918. 1. STREET RAILROADS: Collision with Automobile: Contributory Negligence of Chauffeur: Failure to Look. Where an automobile chauffeur approaching a street intersection was given a signal to cross by the traffic policeman, from his failure to observe the movements of an approaching street car, when the car was about 100 feet from the crossing at the time of the signal, it cannot be said, as a matter of law, that the chaffeur was guilty of contributory negligence in proceeding to cross the street car tracks with out paying further heed to the street car. 2. APPELLATE PRACTICE: Rule of Review: Demurrer to Evidence. The appellate court in passing upon the ruling of the trial court upon a demurrer to the evidence, will view the evidence in the light most favorable to plaintiff, giving plaintiff the benefit of every reasonable inference that may fairly be drawn therefrom. 3. STREET RAILROADS: Collision with Automobile: Action for Damages: Instructions. In an action against a street railroad for injuries to an automobile caused by a collision with a street car, an instruction which, in substance, required the jury to find that the traffic officer gave a signal or direction for the street car to stop and permit the automobile to pass, and that the motorman saw the signal, or by the exercise of ordinary care under the circumstances would have seen it, but failed to comply therewith, and then tells the jury that if they "further find from the evidence that such failure of the motorman in such respect caused the street car to collide with the automobile and damage it,” and further find that such failure to obey the signal of the traffic of ficer, if given, "was failure on the part of the motorman to ex 4. 5. Am. Auto. Ins. Co. v. United Rys. Co. of St. Louis. ercise ordinary care for the safety of the automobile," then to find for plaintiff, provided the jury further find that the driver of the automobile was at the time exercising the highest degree of care for his own safety and that of the automobile, was not objectionable as failing to require the jury to find that the motor. man could have stopped his car after the giving of the signal by the traffic officer. : : In such action, an instruction to the effect that the motorman's failure to obey the traffic officer's signal, if given, was a failure to exercise ordinary care, held proper, where the evidence sufficed to warrant a finding that the street car could have been stopped after such signal was given in time to avoid the collision. -: Proximate Cause: Failure to Ring Bell: Instructions. Likewise, it was not reversible error, under the circumstances, to submit to the jury, as a predicate of liability, the failure of the motorman to ring his bell, though the automobile chauffeur, having seen the car 100 feet north of the crossing, proceeded to cross, in obedience to the signal, without further observing the car. 6. TRIAL PRACTICE: Instructions: Withdrawing Issue of Negligence. Where plaintiff alleged the violation of ordinances, but abandoned such assignments of negligence, defendant was entitled to an instruction withdrawing such assignments from the jury. 7. -: Request. Where the plaintiff, in such action, abandoned an assignment of negligence basing a recovery upon the violation of "east and west right of way ordinance," the refusal of a requested instruction withdrawing from the jury the motorman's failure to give the automobile the right of way over the street car was not error, such instruction being too broad and indefinite, and, held, regardless of the particular language employed in the petition, if appellant desired an instruction given for the purpose mentioned, it was its duty to offer a clear and definite instruction withdrawing the issue in question, and which would not be readily susceptible to a construction at variance with instructions covering the live issues in the case. Appeal from the Circuit Court of the City of St. Louis. -Hon. Kent K. Koerner, Judge. AFFIRMED. T. E. Francis, S. P. McChesney and Chauncey H. Clarke for appellant. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence Am. Auto. Ins. Co. v. United Rys. Co. of St. Louis. requested by defendant, for the reason the chauffeur was guilty of contributory negligence as a matter of law in driving upon the track immediately in front of a moving car without looking. Stotler v. C. & A. Ry. Co., 204 Mo. 619, 639; Laun v. St. L. & S. F. R. Co., 216 Mo. 563. (2) Plaintiff's instruction No. 1, based on the theory that the motorman failed to comply with the ordinance to stop his car pursuant to the traffic officer's signal, is erroneous for the following reasons: (a) It was unsupported by the evidence, in that no showing was made that the motorman was able, in the exercise of ordinary care, to stop the car in time to avoid the collision after the signal was given; in fact, all the evidence was that the motorman was unable to stop his car after the signal to stop was given. Roseman v. U. R. Co., 197 Mo. App. 337. (b) It failed to submit to the jury, as a condition precedent to a verdict thereunder, the question as to the ability of the motorman to stop with the appliances at hand, permitting a recovery if the jury found as a matter of fact that the motorman failed to stop his car, irrespective of his ability so to do. The finding of the condition that the motorman was able to stop after the signal was given was a a condition precedent to plaintiff's right to recover; otherwise such failure would not be the proximate cause of the collision. Delfosse v. U. R. Co., 201 S. W. 860, 862. (c) It assumes a controverted issue in the case, viz, that the motorman was able to stop after the signal was given. Ganey v. K. C., 259 Mo. 654, 663; Wease v. Tool Co., 187 Mo. App. 716, 719; Dority v. Railroad, 188 Mo. App. 365, 374. (d) The driver's contributory negligence barred a recovery thereunder. Stotler v. C. & A. Ry. Co., 204 Mo. 619, 639; Laun v. St. L. & S. F. R. Co., 216 Mo. 563, 580. (3) The court erred in giving plaintiff's instruction No. 2, predicated on failure to sound the gong, for the following reasons: (a) Failure to sound the gong was not the proximate cause of the collision, for the reason that the only purpose in sounding the gong is ta attract |