Imágenes de páginas
PDF
EPUB

afraid the man was going to die in my house. He told me he wanted to go to Newport; that his wife and boy were there. I never saw him after I put him on the train. This was after 3 o'clock, on the north-bound Cannon Ball train. He must have weighed over 200 pounds, was a square-shouldered, fleshy, strong man, and looked like he carried his age well. I would judge him to be between fifty and sixty, and seemed to be stout and healthy in every way. At that time I did not know the conductor. The deceased walked with me to the depot. Nobody helped me until I came to the train. He fell down a couple of times. I needed help. He fell down from weakness. He was a little stupid and weak. I can't say that I put him on the train before I saw the conductor. I can't say whether the conductor was standing on the platform at the time or not. The conductor and brakeman were standing there, but I am not sure they were on the platform. Somebody pointed out to me the conductor, but I can't swear whether before or after I put deceased on the train. If I am not mistaken, they were on the platform at the time I got on, and helped to put him up there. I think the brakeman helped me, and both were together when I got him on the car. The conversation with the conductor was after I put him on the car. I had not gotten off. I was standing in the car when he took the money. I had the conversation spoken of with the conductor, inside the car. The man seemed perfectly quiet; not disposed to get up nor run around; perfectly content to lie there. That man that helped me on the train, I think, had on a brakeman's cap. I knew the conductor by his receiving the money." The dead body of Price was found about four miles south of Cabot, on the right of way of the St. Louis, Iron Mountain & Southern Railway Company. The coroner found the body lying in a diagonal position from the railroad track, the feet toward the track, and the head five or six feet from the track. The tie inspector, who informed the coroner of the death, found the body with head and shoulders in the ditch, and he had drawn the body out of the water. The body was soaked from the shoulder to the waist with water. His left arm and leg were broken, and he was badly bruised about the left side of head and face. It was shown that the conductor told the agent at Newport "that he had lost a man between there and Little Rock."

On behalf of appellee the conductor testified, so far as material here, as follows: "I did not see Mr. Ward bringing Dr. Price to the train in December, 1898. I went out as conductor of that train, No. 56. The first I knew of Ward's bringing Price down there was, Mr. Ward was brought to me by Mr. Hall, who stated that he had a man whose 88 S.W.-37

fare he was going to pay to Newport. He said: 'I have got a man. I want to pay his fare to Newport.' I said: 'All right. Why don't you go and buy a ticket?' He said: 'I would rather pay you the money. I will show him to you.' I got on the steps, Ward going ahead. He said: "This is the man. I want to pay his fare to Newport.' I told him the fare was $6.85. The fare was paid, and he said: 'He has been with me for three or four days, drunk. He is getting in good shape now, and I want you to take charge of his money, and don't let him buy any more whisky. I have given him what whisky I want him to have.' He made no request of me, and I made no agreement with him, in regard to looking after the old man. Nothing was said about that; not a word about looking after him; nothing except what I have stated. He gave me the money. I took it and counted it. Mr. Hall was a witness. He told me to give it to him when we got to Newport. He said if he had the money he would probably get off and get another drunk. At this time he was sitting up in the south end of the smoking room. In the course of his trip north he was lying down once or twice. During the trip I would see him frequently-every time I worked the train. I would see everybody on there. Every station we stopped at, I went through the entire train, and I saw him on every occasion. He sat in the smoking room quite awhile, and I saw him several times inside, sitting in a chair. He passed through the swinging door, of the partition and stepped into the car. I know that twice I saw him in that car. He looked to me like a man that had been on a drunk. He certainly did not seem to be entirely incapable of taking care of himself. I did not see anything in his condition or conduct, or anything he did, to suggest to me that he needed any special looking after. I saw him twice walk into the car and look around. One time he had come just inside, and had a conversation with me. This is not unusual for a drunk man. I paid no attention to that. The conversation was between Malvern and Arkadelphia. It was a few words. He said: 'You have my money. Get me a bottle of whisky.' I first missed him just after leaving Holland, which is twenty-one miles north of Little Rock, and two and three-fourths miles from Cabot. I told the porter to go through the train and search for him. We could not find him. When I found he was off the train, I stopped at the first telegraph station and wired back that we had lost him. The telegram was as follows: '12-16-98. To C. M. H.: I am short a passenger. Think he fell off train between McAlmont and Austin. He was very drunk. Think his name is J. F. Price, Newport. Please have trains look out for him. Brandon.'" The testimony of other witnesses for appellee tended to corroborate the evidence of the conductor.

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

There

It was

WOOD, J. (after stating the facts). was evidence to support the verdict. a mixed question of law and fact 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 well as appellee. It would uselessly extend this opinion for us to discuss each instruction given at the instance of appellee to which appellants object. It shall suffice to announce the law applicable to such cases, and then to determine whether the instructions, as a whole, conform to the principles announced.

A railway company is not required to accept as a passenger one without an attendant, who, from intoxication, is mentally or physically incapable of taking care of himself. But it cannot refuse to receive as a passenger one who is capable of taking care of himself, and whose presence is not dangerous or hurtful or annoying to fellow passengers. If the conductor of a passenger train accepts one as a passenger, unattended, who, from drunkenness, is unable to look after himself, he (the conductor), in so doing, is acting within the scope of his authority. It is one of the duties of the conductor to pass upon the eligibility, so to speak, of those presenting themselves for transportation. If a conductor accepts a person as a passenger whom he knows to be unattended, and knows to be insensible from intoxication, and thereby unable to protect himself from danger and injury, the company owes him the duty to exercise such care as may be reasonably necessary for his safety. While the company is not an insurer of the person of one who has been received as a passenger in such condition, being cognizant thereof, it is bound to exercise all the care that a reasonably prudent man would to protect one in such insensible and helpless condition from the dangers incident to his surroundings and mode of travel. The railroad company must bestow upon one in such condition any special care and attention, beyond that given to the ordinary passenger, which reasonable prudence and foresight demand for his safety, considering any manner of conduct or disposition of mind manifested by the passenger and known to the company, or any conduct or disposition that might have been reasonably anticipated from one in his mental and physical condition, which would tend to increase the danger to be apprehended and avoided.

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 evidence 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.

The doctrine of res ipsa loquitur does not apply in cases where the accident or injury, unexplained by attendant circumstances, might as plausibly have resulted from negligence on the part of the passenger as the carrier. Nor is it applicable to the death of a passenger that comes by reason of circumstances and conditions that are personal and peculiar to him, and not by reason of any management of or accident to or condition in the train itself, over which the carrier has exclusive control. "The true rule would seem to be that when the injury and circumstances attending it are so unusual and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road, over which the company has entire control, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury." Authority for the various propositions of law announced above will be found in 4 Elliott on R. R. § 1644; Penn, R. Co. v. Raiordon, 119 Pa. 577, 13 Atl. 324;. Barnoweski's Adm'r v. Nelson, 15 L. R. A. 33, note; Hutch. on Car. § 800, 801; Transportation Co. v. Downer, 11 Wall. 129, 20 L. Ed. 160; 6 Cyc. 628-630; Thompson, Car. & Pass. 209 et seq., 214; Washington v. M., K. & T. R. R., 90 Tex. 314, 38 S. W. 764; Wood on R. R. p. 1559, et seq. 1569; 4 Elliott, R. R. §§ 1577, 302, 1330; Thompson on Car. Pass. p. 270, 271, 369; 3 Wood, R. R. § 1207; Robert Croom v. Ry., 52 Minn. 296, 53 N. W. 1128, 18 L. R. A. 602, note, 38 Am. St. Rep. 557; Ry. v. Evans, 71 Tex. 361, 9 S. W. 325, 1 L. R. A. 476; Milliman v. N. Y. & H. R. Ry., 66 N. Y. 642; 6 Cyc. p. 598, 9, note; Meyer v. St. L., I. M. & S. Ry. Co., 54 Fed. 116, 4 C. C. A. 221; Cin., Ind., St. L. & Chicago R. Co. v. Cassius B. Cooper, Adm'r, etc. (Ind. Sup.) 22 N. E. 340, 6 L. R. A. 241, 16 Am. St. Rep. 334; Kingston v. Ry., 40 L. R. A. 131, notes; Fisher v. Ry. (W. Va.) 19 S. E. 578, 23 L. R. A. 758; St. A.

& Terre Haute Ry. v. Carr, 47 Ill. App. 353; Atchison, T. & S. F. Ry. Co. v. Parry (Kan.) 73 Pac. 105; Putnam v. Ry., 55 N. Y. 108, 14 Am. Rep. 190; Ry. v. Martin, 61 Ark. 549, 33 S. W. 1070; Ry. v. Sweet, 60 Ark. 550, 31 S. W. 571; Ry. v. Rexroad, 59 Ark. 180, 26 S. W. 1037; Ry. v. Duffey, 35 Ark. 602.

Instruction No. 8 given at the request of appellants is not an accurate and complete statement of the doctrine of res ipsa loquitur, as applicable to the facts in this record. But the error presents no ground for reversal, because the instruction was favorable to appellants, and was asked by them, and the verdict was for appellee.

The other instructions, upon the whole, conform to the law as herein announced, and fairly presented the issues.

Affirm.

LEWIS et al. v. TISDALE et al. (Supreme Court of Arkansas. June 10, 1905.) 1. DEEDS-OPERATION IN FUTURE.

A deed reserving a life estate to the grantor, and to become operative at her death, is valid.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 5, 16; vol. 49, Cent. Dig. Wills, §§ 208, 209.]

2. SAME-DELIVERY-EVIDENCE.

Where a deed was executed by a husband and wife to the latter's daughter, corroborated evidence that in the husband's absence the wife had it produced, and gave it to her granddaughter to keep for the grantee, is sufficient to sustain delivery, though the husband stated that his wife gave him the deed to do as he pleased with, and that he placed it in his trunk.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 625-629.]

Appeal from Chancery Court, Randolph County; Geo. T. Humphries, Chancellor.

Suit by Charles Tisdale and others against Emily Lewis and another to set aside a certain deed. From a decree for complainants, defendants appeal. Reversed.

The deed referred to in the opinion is as follows:

"Know all men by these presents that we, Mary A. Brady and John R. Brady, for and in consideration of the sum of Fifteen Hundred Dollars, and for the further consideration of the love and affection which the said Mary A. Brady bears for Emily Lewis, her daughter, issue of her marriage with Sherly Tisdale, the receipt of the said Fifteen Hundred Dollars being hereby acknowledged, have this day granted, bargained, sold and conveyed and by these presents do hereby grant, bargain, sell and convey unto the said Emily Lewis and unto her heirs forever the following described real estate in the county of Randolph and State of Arkansas, towit: North-west fractional quarter (north of Spring river) in section eight (8), north of the base line, in range two (2), west of the fifth principal meridian.

"To have and to hold unto her, the said Emily Lewis and her heirs and assigns in fee simple forever. And I, the said Mary A. Brady, do hereby covenant to and with the said Emily Lewis that I am lawfully seized in fee of the aforegranted premises, that I have a good right to sell and convey the same and that I will for myself and heirs, executors and administrators shall forever warrant and defend the title to the same unto her the said Emily Lewis, her heirs and assigns, against the lawful claims and demands of all persons whomsoever.

"And it is hereby expressly understood that the said Mary A. Brady shall have and retain the use and enjoyment, the rents and profits of the aforegranted premises for and during her natural life; and that this grant, bargain and sale shall not be operative and 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 conditions of this conveyance, but not until then.

"Given under our hands this the 4th day of September, 1902. [Signed] Mary A. Brady. John R. Brady."

Jno. B. McCaleb and Witt & Schoonover, for appellants. Chas. Tisdale, Margaretta Wells, and Hatcher Miller, for appellees.

HILL, C. J. Mrs. Mary A. Brady was the owner of a tract of land which is the subject-matter of this litigation; and on the 4th day of September, 1902, she and her husband executed and acknowledged, in the town of Pocahontas, a deed thereto to Mrs. Emily Lewis. Mrs. Lewis was a daughter of Mrs. Brady by a former marriage. The deed reserved a life estate to Mrs. Brady, and was to become operative at her death. It will be set out by the reporter in the statement of facts. The description is defective, but it is agreed that it was intended to cover the farm known as the "River Farm," and no point is made against it on account of the misdescription. The deed was valid. Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563; Cribbs v. Walker (Ark.) 85 S. W. 244.

The only question in the case is a question of fact-whether or not the deed was delivered. This suit was brought by Mrs. Brady's heirs at law to set it aside. Mr. Brady testified his wife gave it to him to do as he pleased with it, and that he placed it in a trunk, and it was not delivered, but wrongfully taken by Mrs. Lewis after Mrs. Brady's death, and then placed of record. He is corroborated in this version of the transaction by several witnesses testifying to statements and conduct of Mrs. Lewis consistent with this theory, and inconsistent with her version of the transaction. Mrs. Lewis and her daughter Mrs. Wells testify that a few days before the death of Mrs.

Brady, while Mr. Brady had gone to Imboden for a physician and medicine, Mrs. Brady had the deed produced, and gave it to her daughter to read, and, after it was read, delivered it to her granddaughter to keep for her (the granddaughter's) mother; that Mrs. Wells put the deed in a trunk containing some of her own clothes and some of her grandmother's; that after Mrs. Brady's death, in going through her things, Mr. Brady got this deed, and a contention at once arose between Brady and Mrs. Lewis over it; that Brady put it in another trunk, and later Mrs. Lewis, in his presence and that of other members of the family, took it therefrom. These witnesses are corroborated by a disinterested witness, who testified to communications with Mrs. Brady showing it was her intention for Mrs. Lewis to have this property. The execution of the deed itself and its terms are also corroborative of this testimony, and the direct testimony of its delivery is not inconsistent with Brady's testimony of what his wife told him, as she might have decided afterwards, and during his absence, as stated by the witnesses, to perfect the transfer. On the whole case, the court is of the opinion that the preponderance of the testimony sustains the delivery of the deed.

The decree is reversed, with directions to dismiss the complaint and grant the prayer of the cross-complaint, reforming the description in the deed and quieting Mrs. Lewis' title.

ST. LOUIS, I. M. & S. RY. CO. v. GRANT.* (Supreme Court of Arkansas. June 10, 1905.) 1. AGENCY-TORT OF AGENT-SCOPE OF AUTHORITY-EVIDENCE-SUFFICIENCY.

In order to hold a principal liable for a tort of his agent, the agent must have been at the time engaged in the principal's business, and the tort must have been committed while he was carrying out such business.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Agent, $$ 599, 600.j 2. SAME-EVIDENCE-SUFFICIENCY.

In an action against a railroad company for an assault committed on plaintiff by defendant's detective while plaintiff was taking down the numbers of cars belonging to defendant, evidence held sufficient to show that the detective was acting under directions of defendant to stop the taking down of numbers. 3. SAME-SUFFICIENCY OF EVIDENCE-COURSE OF EMPLOYMENT.

In an action for an assault on plaintiff by defendant's agent, evidence held sufficient to warrant a finding that the agent was acting in the course of his employment for the benefit of his principal, and within the line of his duty. 4. ASSAULT-EXCESSIVE DAMAGES.

Where, in an action for an assault and battery, the jury found no exemplary damages, but returned a verdict for $7,000, and it appeared that the assault was a vicious one, that plaintiff was lame and bruised for two weeks, incurred medical and drug bills, suffered pain and the practical loss of one eye, had a slight personal disfiguration, and was a constant sufferer from headaches; that he was a stenog

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

rapher, and that the loss of his vision seriously impaired the pursuit of his occupation-the verdict was not excessive.

[Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Assault and Battery, § 55.]

Battle and McCulloch, JJ., dissenting.

Appeal from Circuit Court, Pulaski County; Edw. W. Winfield, Judge.

Action by one Grant against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

He

The appellee, Grant, brought suit in Pulaski circuit court against the appellant railway company for personal injuries received from an assault and battery of one O. W. Burke, a "special agent" or detective of the appellant railway company. He sued for both compensatory and exemplary damages. The jury found against the plaintiff as to exemplary damages, and found in his favor as to compensatory damages, which were assessed at the sum of $7,000, and judgment was entered therefor. The defendant railway company, properly preserving its exceptions, brought the case here. Grant was a young man employed in the freight department of the Choctaw, Oklahoma & Gulf Railroad Company (hereafter referred to as the "Choctaw Road"), and he was directed by his employer to go to the switches where freight cars were standing, and take the numbers of the various cars and gather data therefrom for the use of his employer. 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 performance of this work of taking numbers of Iron Mountain freight cars on a switch in said street, he was set upon by said Burke. Burke attacked him without warning, and beat him viciously. The result of this beating was the permanent loss of 90 per cent. of the vision in one eye, the permanent drooping of one eyelid, and suffering from the date of the injury to the time he testified in the trial, in addition to expenses, loss of time, etc. The appellant offered no evidence on the trial, and the substance of the appellee's testimony was: Bossinger, the local freight agent of the Iron Mountain Railway at Little Rock, learned of Grant's taking the car numbers, and notified A. R. Bragg, the division freight agent, by letter and verbally, of these facts, and he told the commercial agent of the Choctaw Railroad and the local freight agent of said road that if they did not stop this boy from taking these numbers that he (the boy) would get hurt. Bragg was the head of the freight department of the road at Little Rock and in the division of which Little Rock was the headquarters. When he received this information from Bossinger, he wrote to the general superintendent at St. Louis in regard to it, and had some correspondence with him about it and probably other officers. He wrote the following

letters to Mr. Morrison, the general freight agent of the Choctaw Road:

"Personal. Little Rock, Ark. Sept. 30, 1902. Mr. H. W. Morrison, G. F. A. C. O. & G. R. R. Little Rock, Ark.-Dear Sir: For several months it has been called to my attention, at different times, that a man in the employ of your company, either in your office or the office of your commercial agent here, makes a practice of going over our team and private tracks daily taking numbers and initials, etc. In two or three instances merchants have complained to me that your representative has been to them calling their attention to such cars received via the Iron Mt. wanting to know why such cars were not shipped via the Choctaw. The name of the party who is taking the numbers is Grant. He was found taking numbers of our cars on the Penzel Grocery Company's track on last Saturday. All I desire to say is that I consider this a contemptible piece of business, and a method that no fair competitor would take to gain information, and we propose to treat this man as a trespasser. [Signed] Yours truly A. R. Bragg. ARB."

"Personal. Little Rock, Ark. Oct. 6, 1902. Mr. H. W. Morrison, G. F. A., C. O. & G. Ry.. City. Dear Sir: Replying to your personal letter of Oct. 5th in answer to my letter of Sept. 30th.: I desire to say that is entirely with you whether you answer communications from this office or not. In the second place, I deny positively that anyone connected with this company in Little Rock ever resorted to the practice to which your company have resorted to get information, and the statement made in the second paragraph of your letter is without foundation. I desire further to add that, hereafter, if the party in your employ is found in our yards taking car numbers and getting other information, as charged in my communication of September 30th, he will be treated as a trespasser. [Signed] Yours truly, A. R. Bragg, D. F. A." Daniel Webster was a young man employed as "utility man" in Bossinger's office, and he was acquainted with Grant, and Bossinger was not. Burke came to Bossinger's office, according to Bossinger's testimony, asked if they were having any trouble with the Choctaw representative, and was told they had, and Burke said he wanted to have some one identify the party, and Bossinger-so Webster says, and Bossinger practically admitsdelegated Webster to go with Burke to identify the party. Webster went with him three different times before they found him; the first time about a month before the other trips; and finally found him as heretofore stated, and Webster pointed him out to Burke, with the result that Burke immediately assaulted him. A short time before the assault Webster stated to W. H. Davis, a witness, that they were looking for Grant (referring to himself and the detective), and the witness asked what the detective was do

ing looking for Grant, and Webster told him that Grant was checking up their cars, and the witness asked what they were going to do if they caught him, and he said they were going to beat him. Burke was not present, but in sight, when this conversation was had. When Burke attacked him, he told him he had been warned before not to do this work, and during the attack on Grant Burke secured his memorandum book, with the car numbers, and just after the attack remarked, in hearing of a bystander, "We will just take this up, and show it to them." Webster testified that once after the assault he saw Burke come into Bossinger's office, get some money, and walk out. Bossinger says he was not in his office after the assault. Bragg says that Burke came to his office before the assault on Grant, which was November 25, 1902, and he had a conversation once or twice with him before the assault. Burke asked him, so he says, if he knew who was taking the car numbers, and he said he knew it was being done, but did not know who was doing it. He denied all further knowledge of the affair than as stated. He said that he was (at the time under inquiry) a general agent in Arkansas of the company for freight business, and had control of the local agents in matters relating to freight traffic. Wm. Ballard was chief of the special agents and detectives, and C. W. Burke was under his direction and control. He assigned Burke to his territory, which was the Arkansas division, and his duties; and he was instructed to look after merchandise while he was in Little Rock, as many cars had been robbed in the yards there and at Fort Smith. Ballard testified it was Burke's duty to act without special instruction in cases of robbery or trouble with freight cars. His instructions to his men were to investigate at once when they found out that cars were broken into or other depredations committed. He denied sending Burke on this mission, and said he did not remember of having a request for a detective to be specially sent to the yards in question. The payroll of the company for November showed that Burke was working for the company for $85 per month, and he also received $66.30 for expenses during that month.

B. S. Johnson, for appellant. Cantrell & Loughborough, for appellee.

HILL, C. J. (after stating the facts). The appellant does not insist upon any errors in the instructions. The court gave all the instructions the appellant requested, and they were in harmony with those given at the request of the appellee, and fairly presented the law of the whole case to the jury.

The appellant objected to a great deal of the testimony adduced, and insists that much of it is incompetent and prejudicial. A corporation acts only through agents, and the appellee had no direct evidence to sustain his cause, and necessarily relied upon various

« AnteriorContinuar »