Missouri Pacific Railroad Company v. Gregory

• Citation: 238 S.W. 54,152 Ark. 335
• Decision Date: 06 March 1922
• Docket Number: 199
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. GREGORY
• Court: Supreme Court of Arkansas

238 S.W. 54

152 Ark. 335

MISSOURI PACIFIC RAILROAD COMPANY v. GREGORY

No. 199

Supreme Court of Arkansas

March 6, 1922

Appeal from Clay Circuit Court, Western District; R. H. Dudley Judge; affirmed.

Judgment affirmed.

Gordon Frierson, for appellant.

Davis the servant, was not acting for or on behalf of the appellant in making the assault upon appellee, but was acting either in what he conceived to be self-defense, or from motives of personal anger toward appellee. In neither case was the appellant liable. American Ry. Exp. Co. v Mackley, 148 Ark. 227.

J. N. Moore, for appellee.

The assault was committed by the servant of appellant acting in the line of his duty, as testified by him, and appellant is liable therefor. 42 Ark. 553; 58 Ark. 386; 131 S.W. 971; 88 S.W. 582.

OPINION

WOOD, J.

This is an action by the appellee against the appellant for personal injuries. The appellee alleged in substance that the night operator of the appellant at its station at Knobel, Clay County, Arkansas, acting in the line of his employment, assaulted the appellee with a deadly weapon, to-wit, a pistol; that the appellee was lawfully on the platform of the appellant when the appellant's night operator and acting station agent, without any cause or provocation, struck the appellee with a pistol, inflicting upon him serious personal injuries; that on account of the unlawful, wrongful, wilful, and negligent act of the appellant's agent in thus assaulting the appellee and in using vile epithets and insulting language toward him, he had been actually damaged in the sum of $ 1,500. He prayed judgment for this sum and also for punitive damages in the sum of $ 1,000. The appellant denied all the material allegations of the complaint.

The appellee testified in substance that on November 29, 1920, he was at the depot of appellant at Knobel, Arkansas; that he was watching for appellant's train No. 18 to come in and was near the northwest door of the depot. Davis, appellant's depot agent, came out of the station and passed to appellee's right. Appellee paid no attention to what he was doing--saw that he was at work. Appellee next noticed Davis when he ran up against the appellee. Appellee did nothing and had said nothing to Davis that night. Davis before that had said nothing to him. Davis said to appellee: "What in the hell are you doing here?" and turned around and said, "Get," and struck appellee with a pistol. Davis kept saying, "Get" and held out the pistol. Appellee retreated, and Davis followed him fifteen or twenty feet below the south end of the depot. On the night before the occurrence appellee was at the depot talking to a fellow he knew, and Davis came in with a poker to fix the fire, and turned around to the appellee and said, "Have you any business here, Gregory?" and appellee replied, "Nothing in particular," and Davis stepped to the door and said, "Get out of here." Appellee replied, "What is the idea?" and Davis said, "Get out." Appellee stepped out and said, "Old man, you get off the railroad premises, and I can whip you on less ground than you are standing on." Davis said nothing but shut the door and went back. Appellee did nothing to cause the assault. Appellee occasionally met women who came in on the train. Some of them were nice women. There was other testimony corroborating the testimony of the appellee as to the manner of the assault.

It was shown by the testimony on behalf of the appellee that it was the duty of the station agent to maintain order, prevent trespassing in and around the station house to the best of his ability; that telegraph operators were required to prevent loafing in the office and in waiting rooms, but not to do the policing of platforms. Night operators are expected to protect the company's property, but are not expected to keep people off of the premises unless they are suspicious characters or chronic loafers. If brought to his attention that a man is a trespasser, it would be within the scope of his authority for the operator to order him off of the premises.

Davis the station agent, testified that he was the telegrapher for the appellant at Knobel on November 29, 1920. About five minutes after twelve he went out to load baggage on the train. Appellee was standing between the waiting room door and the coach. Witness had to go around him. Witness unloaded the baggage and had to go around the appellee again as he went back to the office. Witness struck the appellee, and appellee struck witness. Witness stated that his mind was on his business, but that he was expecting to be assaulted by the appellee on account of an occurrence the night before, and witness wheeled and struck the appellee with a pistol. The occurrence the night before was in the waiting room, where the appellee was cursing, and witness had ordered him out. Appellee went out cursing. On other occasions appellee had come to the station swearing and talking with indecent women, and, if there were any decent women in there, they would be insulted. This got to be a...