Lumber Co. v. Levee District.

point we do not decide, then, as district number 4 was the first to organize and locate its levee, number 25 is more properly the one which ought to do this. It is also shown that these two districts have adopted different methods of constructing levees, one of them making the embankment on the land side and the other on the river side of the excavation. There is no evidence as to which is the better. Defendant claims in argument that its method is far superior, but the point is that the two levees when constructed in these different manners cannot be joined without completely obstructing the excavated ditch carrying a large amount of surface and overflow water and causing same to be dumped on plaintiff's and other lands. Again, we think that other things being equal, the district last organized, if either, should be made to conform to the prior one in the method of constructing the levee.

It is conceded that plaintiff's lands are swampy and largely covered with water in the absence of any levee. It is uncertain to what extent the building of both these levees, as proposed, will aggravate this evil. As plaintiff's witness said, it does not make much difference whether the land is "six inches wet or six feet." It is shown, that because levees are built on the Arkansas side of the St. Francis river also, the effect is to confine the waters to a channel and this raises the same two or three feet in high water. This would cause the waters to back up through the break in the levees to a greater extent. But, it is a matter of grave doubt as to what effect defendant's levee has on this condition. The gathering together of the waters and casting same into this opening and onto plaintiff's flat lowlands in greater volumes is due to levee number 25. Perhaps that part of defendant's levee along the Varner river aggravates this condition by not allowing the waters to spread out more, but it could do but

Lumber Co. v. Levee District.

little damage in this respect without levee number 25 being built.

Plaintiff bought this land after levee number 4 was located, but we have not given this fact much weight. Water must run somewhere and one who buys lands which are practically the bed of an overflow river cannot always demand that in draining lands more favorably situated the drainage system should be so constructed as to drain his lands equally with others more favorably situated. These drainage districts being public corporations, authorized by law to do this character of work and formed partly at least under the police power of the State and to promote the public welfare, must be given some discretion at least as to the method employed to accomplish their work. The courts go slow in administering their affairs or controlling the methods adopted in doing their work. What rights plaintiff may have in another action we do not say. There is a class of remote and consequential damages to property flowing from making public improvements which are regarded as damnum absque injuria. [Funke v. St. Louis, 122 Mo. 132, 26 S. W. 1034; Vam De Vere v. Kansas City, 107 Mo. 83, 17 S. W. 695; Northern Trans. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336; 20 Am. & Eng. Ency. of Law (2 Ed.), 1192, 1193.] It is sufficient in this case to hold that the injunction asked should not be granted.

The judgment of the trial court will, therefore, be affirmed.

Robertson, P. J., and Farrington, J., concur.

Winston v. Lusk.

CHARLES B. WINSTON, Respondent, v. JAMES W. LUSK, W. C. NIXON, and W. B. BIDDLE, RECEIVERS OF THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellants.

Springfield Court of Appeals, December 31, 1914.

1. CARRIERS: Passenger: When Relation Begins. Plaintiff having purchased a ticket presented himself at the steps of the defendant's coach to board the train, exhibiting his ticket. The brakeman denied his right to enter and assaulted him. Plaintiff held a passenger.

2.

: Assault on Passenger: Conflicting Evidence: For Jury. Where there is a conflict of evidence whether the brakeman or the plaintiff passenger was the aggressor in an assault alleged to have been committed by the brakeman upon the passenger, the question was properly submitted to the jury.

3. INSTRUCTIONS: Curing Omission by Other Instructions: Carriers: Assault. In an action by a passenger for personal injuries because of an assault by defendant's brakeman, an instruction was given to find for plaintiff if he, under the circumstances mentioned, while attempting to board the car, was struck by the brakeman, and such striking was unjustifiable. The instruction is not erroneous because it failed to state the facts constituting justification, where they are stated in an instruction given for defendant.

4. CARRIERS: Duty to Passengers: Insurers Against Assault by Employees. A carrier is liable absolutely as an insurer for the protection of its passengers against assaults and insults at the hands of its servants.

5.

Assault on Passenger by Brakeman: What Not a Defense. That a brakeman assaulted a passenger, deliberately and without provocation, and merely to feed his personal grudge, does not excuse the carrier from liability on the ground that the brakeman was not acting within the scope of his duty.

6. INSTRUCTIONS: Request That They be Made More Explicit: When Necessary. An instruction as to damages held correct, though general in its scope. The defendant should, if he desired, have asked for more definite and explicit instructions pointing out the proper element of damages and excluding any improper element.

7.

Winston v. Lusk.

: Harmless Error. An error in an instruction in not limiting the amount of actual damages to the amount sued for, is rendered harmless by the fact that the jury entered a verdict for a much less amount.

8. DAMAGES: Discretion Allowed Jury. Large discretion is allowed a jury in awarding damages for personal injuries.

9.

-: Assault: Jury May Consider What. In an action by a passenger for damages because of an assault at the hands of a railroad brakeman, it is proper for the jury to consider that the assault was made at a public place, also the wounded feelings, humiliation and disgrace of the plaintiff as elements of actual damages in addition to his bodily injuries.

10. APPEAL AND ERROR: Assault on Passenger: Punitive Damages: Not Excessive When. Where an assault by a brakeman upon a passenger was wholly unwarranted and made merely for revenge, an award of $700 punitive damages is considered not excessive.

Appeal from Dunklin County Circuit Court.—Hon. W. S. C. Walker, Judge.

AFFIRMED.

W. F. Evans, Moses Whybark and A. P. Stewart for appellants.

(1) Plaintiff was the aggressor in the first fight on the depot platform, and the demurrer to the evidence under the first count of the petition should have been sustained. O'Brien v. Transit Co., 185 Mo. 269; McQuerry v. Railroad, 117 Mo. App. 255; Eads v. Railroad, 43 Mo. App. 536; Breen v. Transit Co., 108 Mo. App. 452. (2) The court erred in giving instruction number 1 for plaintiff as it fails to tell the jury what would constitute a justification for the alleged assault on plaintiff, and the jury were left to determine this question of law without any guidance by the court. Jordan v. Moulding Co., 72 Mo. App. 328. (3) The demurrer to the evidence under the second count of the petition should have been sustained. The difficulty between plaintiff and the brakeman on the train was

Winston v. Lusk.

personal, and in furtherance of a personal grudge on the part of the brakeman, and in committing said assault the brakeman was not acting within the scope of his employment, and in the line of his duty, and his act did not pertain to the particular duties of his employment. Hartman v. Muehlbach, 64 Mo. App. 565; Collette v. Rebori, 107 Mo. App. 711; McPeak v. Railroad, 128 Mo. 617; Faber v. Railroad, 116 Mo. 81; Raming v. Railroad, 157 Mo. 477; Drolshagan v. Railroad, 186 Mo. 258; Milton v. Railroad, 193 Mo. 46. (4) Instruction number 3 given for plaintiff under the second count of the petition is erroneous because it attempts to authorize the assessment of both compensatory damages and punitive damages, and does not limit the compensatory damages to the amount sued for in the petition. Spohn v. Railroad, 116 Mo. 633.

Bradley & McKay and Fort & Zimmerman for respondent.

(1) Respondent was not the aggressor in the first assault. State v. Harden, (S. C.) 2 Speers, 152-3; State v. Smith, 80 Mo. 516. (2) It is a well-established rule of law in this State that carriers must treat their passengers with respect, and must endeavor to protect them from injury or insult, not only from their employees, but from strangers and fellow passengers. Spohn v. Railroad, 87 Mo. 74; Eads v. Railroad, 43 Mo. App. 536; McQuerry v. Railroad, 117 Mo. App. 255. (3) The court will not reverse a case on an improper instruction unless the same is so misleading as to constitute prejudicial error, and affect substantial justice. The instructions should be taken as a whole and considered together the ones given for plaintiff and those given for defendant, and it is to be presumed that the jury did their duty and considered the instructions together. Sonnen v. Transit Co., 102 Mo. App. 274-276; Pendergrass v. Frisco, 162 S. W. 717;