Beasley v. Hines

• Decision Date: 15 March 1920
• Docket Number: 260
• Citation: 219 S.W. 757,143 Ark. 54
• Parties: BEASLEY v. HINES
• Court: Arkansas Supreme Court

219 S.W. 757

143 Ark. 54

BEASLEY v. HINES

No. 260

Supreme Court of Arkansas

March 15, 1920

Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

Emerson Donham & Shepherd, for appellant.

1. Appellant was a passenger. 105 Ark. 340; 113 Id 265.

2. Under the law the railway company was bound to the same high degree of care to protect appellant from injury as if he had been on a passenger train, the duty being modified only by the nature of the train and the necessary difference in the mode of operation. 87 Ark. 109; 83 Id. 22; 76 Id. 520.. Hence the evidence was sufficient to submit the case to a jury and the court erred in refusing to do so. Cases supra; Hutchinson on Carriers (3 Ed.), sec. 895 p. 995; 97 Ark. 24. A carrier must protect its passengers from violence and insults so far as it can be done by exercise of a high degree of care. 4 R. C. L., p. 1181, § 606; White on Pers. Injuries on Railroads, p. 1149, sec. 761; Thompson on Neg., § 3085, p. 544; 10 C. J. 906, § 1334; 35 P. 196; 24 S.E. 467. This case falls within the rule in 89 Ark. 581.

E. B. Kinsworthy and B. S. Kinsworthy, for appellee.

1. There was not sufficient evidence for this case to go to a jury. 111 Ark. 288-298; 32 L. R. A. 792.

2. It was impossible for the railroad company to have anticipated the injury alleged. 115 Ark. 262; 52 Id. 517; 75 Id. 211. A verdict was properly directed as reasonable care could in no way have prevented the accident. 75 Id. 211.

3. Appellant is barred by his contract; he assumed the risk. 82 Kan. 152; 107 P. 565; 75 N.E. 457.

OPINION

SMITH, J.

In support of his cause of action appellant testified as follows: He entered into a contract with the railroad company for the shipment of a carload of live stock and one of household furniture and farm implements, from Bowling Green Missouri, to Donaldson, Arkansas. He left Bowling Green Friday night, and, with the knowledge and consent of the various train crews, rode in the car containing his stock. The train of which his cars were a part left Little Rock about 10 o'clock Monday night, and he fell asleep soon afterwards, and slept until he was awakened by some one pounding on the door of the car. The train had then stopped. He asked what was wanted, but received no reply. The man at the door, who later proved to be a robber, walked around to the other side of the train. The door on that side was open for about six or eight inches, and he lit a lantern and hung it on the beam across the car right in front of the door. He looked out and saw that it was still dark, but noticed several tracks and knew that they were in some switch yard. These tracks were made visible by an electric light, which may have been the headlight of another engine. He saw the man and asked him what he wanted, and the man replied that he was a brakeman and wanted to see if the stock in his car had room to lie down. During his journey the train men had frequently come into his car to see about the cattle. He asked where they were, and was told that they were in Benton. He undid the door, and the man climbed into the car, and sat down on some boards he had nailed across the door, and commenced to talk about the horses. The man remained seated for a few minutes, when it began sleeting, and the man said, "I think I will stay here for a while," and about that time the train started. After going some distance the train took a sidetrack to allow a passenger train to pass. In his own language the narrative is continued as follows: "I thought it was queer of him being in there, and I told him that I didn't believe he was a brakeman because he had on too good clothes, and he said, 'I'll be honest with you, partner; I knew one of the brakeman on the train, and he told me what to do, and he told me the car was going to Donaldson, and I could ride that far.' I began to feel uneasy about his presence in the car, and I listened and watched for a brakeman to pass through to the side of the car or on top of it; but I am positive that none passed the side or over the top, because I had a light in the car and the door was open about two feet. Just as soon as the train pulled out of there, this man, who had been sitting with his face toward me, turned around with his back toward me for a few minutes and faced the door. Suddenly he turned around with a revolved in his right hand, a flashlight in his left hand, and demanded that I put my hands up. I said, 'You don't mean that; you are joking, partner,' and he said, 'God damn you, put them up, or I will blow your damn head off.' I grabbed the gun with my left hand and reached in my hip pocket with my right and threw my pocketbook, which contained about $ 180, in the straw at the horses' feet, but he jerked the gun out of my hand and jumped back out of my reach. I saw that he was going to shoot when he pulled the gun out of my hand and I turned my left shoulder toward him, and he shot me. He then told me to turn around and he felt in my hip pocket, but found nothing in there. He then searched my other pockets and obtained about $ 15 from them. He then came over and found the pocketbook that I had thrown in the straw, and took it also. He remained in the car for about five or ten minutes after he shot me, and as we were going up a long...