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afraid the man was going to die in my fare he was going to pay to Newport. He house. He told me he wanted to go to said: "I have got a man. I want to pay his Newport; that his wife and boy were there. fare to Newport.' I said: 'All right. Why I never saw him after I put him on the don't you go and buy a ticket?' He said: train. This was after 3 o'clock, on the 'I would rather pay you the money. I will north-bound Cannon Ball train. He must show him to you.' I got on the steps, Ward lave weighed over 200 pounds, was going ahead. He said: "This is the man. I square-shouldered, fleshy, strong man, and want to pay his fare to Newport.' I told looked like he carried his age well. I him the fare was $6.85. The fare was paid, would judge him to be between fifty and sixty, and he said: 'He has been with me for three and seemed to be stout and healthy in every or four days, drunk. He is getting in good way. At that time I did not know the shape now, and I want you to take charge of conductor. The deceased walked with me his money, and don't let him buy any more to the depot. Nobody helped me until I whisky. I have given him what whisky I came to the train. He fell down a couple want him to have.' He made no request of of tiines. I needed help. He fell down me, and I made no agreement with him, in refrom weakness. He was a little stupid | gard to looking after the old man. Nothing and weak. I can't say that I put him on the was said about that; not a word about train before I saw the conductor. I can't looking after him; nothing except what I say whether the conductor was standing have stated. He gave me the money. I took on the platform at the time or not. The it and counted it. Mr. Hall was a witness. conductor and brakeman were standing He told me to give it to him when we got there, but I am not sure they were on the to Newport. He said if he had the money platform. Somebody pointed out to me the he would probably get off and get another conductor, but I can't swear whether before drunk. At this time he was sitting up in the or after I put deceased on the train. If I south end of the smoking room. In the am not mistaken, they were on the plat- course of his trip north he was lying down form at the time I got on, and helped to once or twice. During the trip I would see put him up there. I think the brakeman him frequently-every time I worked the helped me, and both were together when I train. I would see everybody on there. Ev. got him on the car. The conversation with ery station we stopped at, I went through the the conductor was after I put him on the entire train, and I saw him on every occasion. car. I had not gotten off. I was standing He sat in the smoking room quite awhile, in the car when he took the money. I had and I saw him several times inside, sitting the conversation spoken of with the con- in a chair. He passed through the swinging ductor, inside the car. The man seemed door, of the partition and stepped into the perfectly quiet; not disposed to get up nor car. I know that twice I saw him in that run around; perfectly content to lie there. car. He looked to me like a man that had That man that helped me on the train, I been on a drunk. He certainly did not seem think, had on a brakeman's cap. I knew to be entirely incapable of taking care of the conductor by his receiving the money.". himself. I did not see anything in his condi

The dead body of Price was found about tion or conduct, or anything he did, to sug. four miles south of Cabot, on the right of gest to me that he needed any special looking way of the St. Louis, Iron Mountain & after. I saw him twice walk into the car Southern Railway Company. The coroner and look around. One time he had come found the body lying in a diagonal position just inside, and had a conversation with me. from the railroad track, the feet toward the This is not unusual for a drunk man. I paid track, and the head five or six feet from no attention to that. The conversation was the track. The tie inspector, who informed between Malvern and Arkadelphia. It was the coroner of the death, found the body a few words. He said: “You have my money, with head and shoulders in the ditch, and Get me a bottle of whisky.' I first missed he had drawn the body out of the water. him just after leaving Holland, which is The body was soaked from the shoulder to twenty-one miles north of Little Rock, and the waist with water. His left arm and two and three-fourths miles from Cabot. leg were broken, and he was badly bruised I told the porter to go through the train and about the left side of head and face. It search for him. We could not find him. was shown that the conductor told the When I found he was off the train, I stopped agent at Newport “that he had lost a man at the first telegraph station and wired back between there and Little Rock."

that we had lost him. The telegram was as On behalf of appellee the conductor testified, follows: '12-16-98. To C. M. H.: I am so far as material here, as follows: "I did short a passenger. Think he fell off train not see Mr. Ward bringing Dr, Price to the between McAlmont and Austin. He was very train in December, 1898. I went out as con- drunk. Think his name is J. F. Price, Newductor of that train, No. 56. The first I port. Please have trains look out for him. knew of Ward's bringing Price down there Brandon.'” The testimony of other witnesses was, Mr. Ward was brought to me by Mr. for appellee tended to corroborate the eviHall, who stated that he had a man whose dence of the conductor.

88 S.W.37

0. D. Scott, Chas. S. Todd, and B. D. Tarlton, for appellants. B. S. Johnson and J. E. Williams, for appellee.

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WOOD, J. (after stating the facts). There was evidence to support the verdict. It was a mixed question of lav and fac

as to whether appellee was liable in damages for the death of Price. There was such substantial conflict in the evidence as to make it entirely proper for the court to submit the questions of negligence and contributory negligence to the jury upon proper declarations of law to be applied by the jury to the facts. Fisher v. Ry. Co. (W. Va.) 19 S. E. 578, 23 L. R. A. 758.

The court granted many separate requests for instructions on behalf of appellants, as

. It

If its servants, knowing the facts, fail to give such care and attention, and injury results, as the natural and probable consequence of such failure, the company will be guilty of negligence, and liable in damages for such injury.

The question of contributory negligence could not arise where the undisputed evi. dence showed the passenger to be mentally or physically incapable of self-protection, and where the railway company had knowledge of such condition when it accepted him as a passenger.

Where the evidence is conflicting, and men of fair judgment and reasonable information might reach different conclusions in considering it, then the question of negligence and contributory negligence must be determined by the jury as matters of fact.

this opinion for us to discuss each instruc- "The doctrine of res ipsa loquitur does not

tion given at the instance of appellee to which apply in cases where the accident or injury, appellants object. It shall suffice to an- unexplained by attendant circumstances, nounce the law applicable to such cases, and might as plausibly have resulted from neglitben to determine whether the instructions, gence on the part of the passenger as the as a whole, conform to the principles an- carrier. Nor is it applicable to the death of nounced.

a passenger that comes by reason of circumA railway company is not required to ac- stances and conditions that are personal and cept as a passenger one without an attend- peculiar to him, and not by reason of any ant, who, from intoxication, is mentally or management of or accident to or condition physically incapable of taking care of him- in the train itself, over which the carrier self. But it cannot refuse to receive as a has exclusive control. “The true rule would passenger one who is capable of taking care seem to be that when the injury and circumof himself, and whose presence is not dan- stances attending it are so unusual and of gerous or hurtful or annoying to fellow pas- such a nature that it could not well have sengers. If the conductor of a passenger happened without the company being neglitrain accepts one as a passenger, unattended, gent, or when it is caused by something conwho, from drunkenness, is unable to look nected with the equipment or operation of after himself, he (the conductor), in so doing, the road, over which the company has enis acting within the scope of his authority. tire control, a presumption of negligence on It is one of the duties of the conductor to the part of the company usually arises from pass upon the eligibility, so to speak, of proof of such facts, in the absence of anythose presenting themselves for transporta- | thing to the contrary, and the burden is then tion. If a conductor accepts a person as a cast upon the company to show that its negpassenger whom he knows to be unattended, ligence did not cause the injury." Authority

for the various propositions of law announced and thereby unable to protect himself from above will be found in 4 Elliott on R. R. $ danger and injury, the company owes him 1644; Penn. R. Co. v. Raiordon, 119 Pa. the duty to exercise such care as may be rea- 577, 13 Atl. 324;. Barnoweski's Adm'r v. Nelsonably necessary for his safety. While the son, 15 L. R. A. 33, note; Hutch, on Car. $ company is not an insurer of the person of 800, 801; Transportation Co. v. Downer, 11 one who has been received as a passenger Wall. 129, 20 L. Ed. 50; 6 Cyc. 628-630; in such condition, being cognizant thereof, it Thompson, Car. & Pass. 209 et seq., 214; is bound to exercise all the care that a rea- Washington v. M., K. & T. R. R., 90 Tex, 314, sonably prudent man would to protect one 38 S. W. 764; Wood on R. R. p. 1559, et seq. in such insensible and helpless condition from 1569; 4 Elliott, R. R. 88 1577, 302, 1330; the dangers incident to his surroundings and Thompson on Car. Pass. p. 270, 271, 369; mode of travel. The railroad company must 3 Wood, R. R. Š 1207; Robert Croom v. Ry., bestow upon one in such condition any special 52 Minn, 296, 53 N. W. 1128, 18 L. R. A. 602, care and attention, beyond that given to the note, 38 Am. St. Rep. 557; Ry. V. Evans, ordinary passenger, which reasonable pru- 71 Tex. 361, 9 S. W. 325, 1 L. R. A. 476 ; dence and foresight demand for his safety, Milliman v. N. Y. & H. R. Ry., 66 N. Y. 642; 6 considering any manner of conduct or dispo- Cyc. p. 598, 9, note; Meyer v. St. I. M. & sition of mind manifested by the passenger S. Ry. Co., 54 Fed. 116, 4 O. C. A. 221; Cin., and known to the company, or any conduct or Ind., St. L. & Chicago R. Co. V. Cassius B. disposition that might have been reasonably Cooper, Adm'r, etc. (Ind. Sup.) 22 N. E. 340, anticipated from one in his mental and phys- 6 L. R. A. 241, 16 Am. St. Rep. 334; Kingston ical condition, which would tend to increase v. Ry., 40 L. R. A. 131, notes; Fisher v. Ry. the danger to be apprehended and avoided. (W. Va.) 19 S. E. 578, 23 L. R. A. 758; St. A.

and knows to be insensible from intoxication, to

& Terre Haute Ry. v. Carr, 47 Ill. App. 353; "To have and to hold unto her, the said Atchison, T. & S. F. Ry. Co. v. Parry (Kan.) Emily Lewis and her heirs and assigns in 73 Pac. 105; Putnam V. Ry., 55 N. Y. fee simple forever. And I, the said Mary A. 108, 14 Am. Rep. 190; Ry. V. Martin, 61 Brady, do hereby covenant to and with the Ark 549, 33 S. W. 1070; Ry. V. Sweet, 60 said Emily Lewis that I am lawfully seized Ark. 550, 31 S. W. 571; Ry. v. Rexroad, 59 in fee of the aforegranted premises, that I Ark. 180, 26 S. W. 1037; Ry. v. Duffey, 35 have a good right to sell and convey the Ark. 602.

same and that I will for myself and heirs, Instruction No. 8 given at the request of executors and administrators shall forever appellants is not an accurate and complete warrant and defend the title to the same unstatement of the doctrine of res ipsa loquitur, to her the said Emily Lewis, her heirs and as applicable to the facts in this record. But assigns, against the lawful claims and dethe error presents no ground for reversal, be- mands of all persons whomsoever. cause the instruction was favorable to appel- "And it is hereby expressly understood lants, and was asked by them, and the ver- that the said Mary A. Brady shall have and dict was for appellee.

retain the use and enjoyment, the rents and The other instructions, upon the whole, profits of the aforegranted premises for and conform to the law as herein announced, and during her natural life; and that this grant, fairly presented the issues.

bargain and sale shall not be operative and Affirm.

shall not take effect until her death; at which time said Emily Lewis shall take possession of said lands and hold the same

under and by virtue of these terms and conLEWIS et al. v. TISDALE et al.

ditions of this conveyance, but not until (Supreme Court of Arkansas. June 10, 1905.) | then. 1. DEEDS-OPERATION IN FUTURE.

“Given under our hands this the 4th day of A deed reserving a life estate to the gran- September, 1902. (Signed] Mary A. Brady. tor, and to become operative at her death, is John R. Brady." valid.

[Ed. Note.-For cases in point, see vol. 16, Jno. B. McCaleb and Witt & Schoonorer, Cent. Dig. Deeds, 88 5, 16; vol. 49, Cent. Dig. for appellants. Chas. Tisdale, Margaretta Wills, $8 208, 209.)

Wells, and Hatcher Miller, for appellees. 2. SAME-DELIVERY-EVIDENCE,

Where a deed was executed by a husband and wife to the latter's daughter, corroborated

HILL, O. J. Mrs. Mary A. Brady was evidence that in the husband's absence the wife bad it produced, and gave it to her granddaugh

the owner of a tract of land which is the ter to keep for the grantee, is sufficient to sus- subject-matter of this litigation; and on the tain delivery, though the husband stated that 4th day of September, 1902, she and her busbis wife gave him the deed to do as he pleased

band executed and acknowledged, in the with, and that he placed it in his trunk. (Ed. Note.-For cases in point, see vol. 16,

town of Pocahontas, a deed thereto to Mrs. Cent. Dig. Deeds, $$ 625-629.)

Emily Lewis. Mrs. Lewis was a daughter

of Mrs. Brady by a former marriage. The Appeal from Chancery Court, Randolph

deed reserved a life estate to Mrs. Brady, County; Geo. T. Humphries, Chancellor.

and was to become operative at her death. Suit by Charles Tisdale and others against

It will be set out by the reporter in the Emily Lewis and another to set aside a cer

statement of facts. The description is de tain deed. From a decree for complainants,

fective, but it is agreed that it was intended defendants appeal. Reversed.

to cover the farm known as the “River The deed referred to in the opinion is as Farm,” and no point is made against it on follows:

account of the misdescription. The deed "Know all men by these presents that we, was valid. Bunch v. Nicks, 50 Ark. 367, 7 Mary A. Brady and John R. Brady, for and S. W. 563; Cribbs y. Walker (Ark.) 85 S. in consideration of the sum of Fifteen Hun- W. 244. dred Dollars, and for the further considera- The only question in the case 18 a question of the love and affection which the said tion of fact-whether or not the deed was Mary A. Brady bears for Emily Lewis, her delivered. This suit was brought by Mrs. daughter, issue of her marriage with Sherly Brady's heirs at law to set it aside. Mr. Tisdale, the receipt of the said Fifteen Hun- Brady testified his wife gave it to him to dred Dollars being hereby acknowledged, do as he pleased with it, and that he placed have this day granted, bargained, sold and it in a trunk, and it was not delivered, but conveyed and by these presents do hereby wrongfully taken by Mrs. Lewis after Mrs. grant, bargain, sell and convey unto the Brady's death, and then placed of record. said Emily Lewis and unto her heirs forever He is corroborated in this version of the the following described real estate in the transaction by several witnesses testifying county of Randolph and State of Arkansas, to statements and conduct of Mrs. Lewis towit: North-west fractional quarter (north consistent with this theory, and inconsistent of Spring river) in section eight (8), north with her version of the transaction. Mrs. of the base line, in range two (2), west of Lewis and her daughter Mrs. Wells testify the fifth principal meridian.

that a few days before the death of Mrs. Brady, while Mr. Brady had gone to Im- rapher, and that the loss of his vision seriously boden for a physician and medicine, Mrs.

impaired the pursuit of his occupation-the verBrady had the deed produced, and gave it

dict was not excessive,

[Ed. Note.—For cases in point, see vol. 4, to her daughter to read, and, after it was

Cent Dig. Assault and Battery, $ 55.] read, delivered it to her granddaughter to

Battle and McCulloch, JJ., dissenting. keep for her (the granddaughter's) mother; that Mrs. Wells put the deed in a trunk con- Appeal from Circuit Court, Pulaski Countaining some of her own clothes and some ty; Edw. W. Winfield, Judge, of her grandmother's; that after Mrs. Bra- Action by one Grant against the St. Louis, dy's death, in going through her things, Mr.

Iron Mountain & Southern Railway Company. Brady got this deed, and a contention at From a judgment in favor of plaintiff, deonce arose between Brady and Mrs. Lewis fendant appeals. Affirmed. over it; that Brady put it in another trunk, The appellee, Grant, brought suit in Puand later Mrs. Lewis, in his presence and laski circuit court against the appellant railthat of other members of the family, took it

way company for personal injuries received therefrom. These witnesses are corroborat

from an assault and battery of one O. W. ed by a disinterested witness, who testified

Burke, a “special agent” or detective of the to communications with Mrs. Brady showing appellant railway company. He sued for it was her intention for Mrs. Lewis to have

both compensatory and exemplary damages. this property. The execution of the deed

The jury found against the plaintiff as to exitself and its terms are also corroborative emplary damages, and found in his favor as of this testimony, and the direct testimony to compensatory damages, which were asof its delivery is not inconsistent with Bra

sessed at the sum of $7,000, and judgment dy's testimony of what his wife told him,

was entered therefor. The defendant railas she might have decided afterwards, and way company, properly preserving its exduring his absence, as stated by the wit

ceptions, brought the case here. Grant was nesses, to perfect the transfer. On the

a young man employed in the freight dewhole case, the court is of the opinion partment of the Choctaw, Oklahoma & Gulf that the preponderance of the testimony sus- Railroad Company (hereafter referred to as tains the delivery of the deed.

the "Choctaw Road"), and he was directed The decree is reversed, with directions to

by his employer to go to the switches where dismiss the complaint and grant the prayer freight cars were standing, and take the of the cross-complaint, reforming the de- numbers of the various cars and gather data scription in the deed and quieting Mrs. therefrom for the use of his employer. He Lewis' title.

was instructed not to go on the appellant's tracks or right of way in performing this work. While he was standing in a public

street of the city of Little Rock in the perST. LOUIS, I. M. & S. RY. CO. V. GRANT.*

formance of this work of taking numbers of (Supreme Court of Arkansas. June 10, 1905.) Iron Mountain freight cars on a switch in 1. AGENCY_TORT OF AGENT-SCOPE OF AU

said street, he was set upon by said Burke. THORITY-EVIDENCE-SUFFICIENCY.

Burke attacked him without warning, and In order to hold a principal liable for a beat him viciously. The result of this beattort of his agent, the agent must have been at the time engaged in the principal's business,

ing was the permanent loss of 90 per cent. of and the tort must have been committed while the vision in one eye, the permanent droophe was carrying out such business.

ing of one eyelid, and suffering from the date [Ed. Note. -For cases in point, see vol. 40, of the injury to the time he testified in the Cent. Dig. Principal and Agent, $$ 599, 600.)

trial, in addition to expenses, loss of time, 2. SAME-EVIDENCE-SUFFICIENCY.

etc. The appellant offered no evidence on In an action against a railroad company for an assault committed on plaintiff by de

the trial, and the substance of the appellee's fendant's detective while plaintiff was taking

testimony was: Bossinger, the local freight down the numbers of cars belonging to defend- agent of the Iron Mountain Railway at Lit. ant, evidence held sufficient to show that the

tle Rock, learned of Grant's taking the car detective was acting under directions of defendant to stop the taking down of numbers.

numbers, and notified A. R. Bragg, the di3. SAME-SUFFICIENCY OF EVIDENCE-COURSE vision freight agent, by letter and verbally, OF EMPLOYMENT.

of these facts, and he told the commercial In an action for an assault on plaintiff by agent of the Choctaw Railroad and the local defendant's agent, evidence held sufficient to warrant a finding that the agent was acting in

freight agent of said road that if they did the course of his employment for the benefit of

not stop this boy from taking these numbers his principal, and within the line of his duty. that he (the boy) would get hurt. Bragg was 4. ASSAULT-EXCESSIVE DAMAGES.

the head of the freight department of the Where, in an action for an assault and bat

road at Little Rock and in the division of tery, the jury found no exemplary damages, but returned a verdict for $7,000, and it appeared

which Little Rock was the headquarters. that the assault was a vicious one, that plain

When he received this information from Bostiff was lame and bruised for two weeks, in- singer, he wrote to the general superintendcurred medical and drug bills, suffered pain and the practical loss of one eye, had a slight

ent at St. Louis in regard to it, and had some personal disfiguration, and was a constant suf

correspondence with him about it and probferer from headaches; that he was a stenog. ably other officers. He wrote the following letters to Mr. Morrison, the general freight , ing looking for Grant, and Webster told him agent of the Choctaw Road:

*For dissenting opinion, see 88 S. W. 1133.

that Grant was checking up their cars, and "Personal. Little Rock, Ark. Sept. 30, the witness asked what they were going to 1902. Mr. H. W. Morrison, G. F. A. C. 0. do if they caught him, and he said they were & G. R. R. Little Rock, Ark.-Dear Sir: going to beat him. Burke was not present, For several months it has been called to my but in sight, when this conversation was had. attention, at different times, that a man in When Burke attacked him, he told him he the employ of your company, either in your had been warned before not to do this work, office or the office of your commercial agent and during the attack on Grant Burke sehere, makes a practice of going over our cured his memorandum book, with the car team and private tracks daily taking num- numbers, and just after the attack remarkbers and initials, etc. In two or three in- ed, in hearing of a bystander, “We will just stances merchants have complained to me take this up, and show it to them." Webster that your representative has been to them testified that once after the assault he saw calling their attention to such cars received Burke come into Bossinger's office, get some via the Iron Mt. wanting to know why such money, and walk out. Bossinger says he cars were not shipped via the Choctaw. was not in his office after the assault. Bragg The name of the party who is taking the says that Burke came to his office before the numbers is Grant. He was found taking assault on Grant, which was November 25, numbers of our cars on the Penzel Grocery 1902, and he had a conversation once or Company's track on last Saturday. All I twice with him before the assault. Burke desire to say is that I consider this a con- asked him, so he says, if he knew who was temptible piece of business, and a method taking the car numbers, and he said he knew that no fair competitor would take to gain it was being done, but did not know who was information, and we propose to treat this doing it. He denied all further knowledge man as a trespasser. (Signed] Yours truly of the affair than as stated. He said that he A. R. Bragg. ARB.”

was (at the time under inquiry) a general “Personal. Little Rock, Ark. Oct. 6, 1902. agent in Arkansas of the company for freight Mr. H. W. Morrison, G. F. A., C. O. & G. Ry., business, and had control of the local agents City.-Dear Sir: Replying to your personal in matters relating to freight traffic. Wm. letter of Oct. 5th in answer to my letter of Ballard was chief of the special agents and deSept. 30th.: I desire to say that is entirely tectives, and O. W. Burke was under his direcwith you whether you answer communica- tion and control. He assigned Burke to his tions from this office or not. In the second territory, which was the Arkansas division, place, I deny positively that anyone connect- and his duties; and he was instructed to look ed with this company in Little Rock ever re- after merchandise while he was in Little sorted to the practice to which your company Rock, as many cars had been robbed in the have resorted to get information, and the yards there and at Fort Smith. Ballard tesstatement made in the second paragraph of tified it was Burke's duty to act without speyour letter is without foundation. I desire cial instruction in cases of robbery or trouble further to add that, hereafter, if the party in with freight cars. His instructions to his your employ is found in our yards taking men were to investigate at once when they car numbers and getting other information, found out that cars were broken into or other as charged in my communication of Septem- depredations committed. He denied sending ber 30th, he will be treated as a trespasser. Burke on this mission, and said he did not [Signed] Yours truly, A. R. Bragg, D. F. A.” remember of having a request for a detective

Daniel Webster was a young man employ to be specially sent to the yards in question. ed as "utility man" in Bossinger's office, and The payroll of the company for November he was acquainted with Grant, and Bossing- showed that Burke was working for the comer was not. Burke came to Bossinger's office, pany for $85 per month, and he also received according to Bossinger's testimony, asked if $66.30 for expenses during that month. they were having any trouble with the Choc

B. S. Johnson, for appellant. Cantrell & taw representative, and was told they had,

Loughborough, for appellee. and Burke said he wanted to have some one identify the party, and Bossinger-so Webster says, and Bossinger practically admits- HILL, C. J. (after stating the facts). The delegated Webster to go with Burke to iden- appellant does not insist upon any errors in tify the party. Webster went with him three the instructions. The court gave all the indifferent times before they found him; the structions the appellant requested, and they first time about a month before the other were in harmony with those given at the trips; and finally found him as heretofore request of the appellee, and fairly presented stated, and Webster pointed him out to the law of the whole case to the jury. Burke, with the result that Burke immediate- The appellant objected to a great deal of ly assaulted him. A short time before the the testimony adduced, and insists that much assault Webster stated to W. H. Davis, a of it is incompetent and prejudicial. A corwitness, that they were looking for Grant poration acts only through agents, and the (referring to himself and the detective), and appellee had no direct evidence to sustain his the witness asked what the detective was do- cause, and necessarily relied upon various

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