Chicago, R. I. & P. Ry. Co. v. Womble

• Decision Date: 26 November 1917
• Docket Number: (No. 13.)
• Citation: 199 S.W. 81
• Parties: CHICAGO, R. I. & P. RY. CO. v. WOMBLE.
• Court: Arkansas Supreme Court

199 S.W. 81

CHICAGO, R. I. & P. RY. CO. v. WOMBLE.

(No. 13.)

Supreme Court of Arkansas.

November 26, 1917.

Appeal from Circuit Court, Calhoun County; Chas. W. Smith, Judge.

Action by S. L. Womble against Jacob M. Dickinson, receiver of the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 199 S. W. 392.

Thos. S. Buzbee and H. T. Harrison, both of Little Rock, for appellant. Pace, Seawell & Davis, of Little Rock, for appellee.

HUMPHREYS, J.

Appellee, telegraph operator at Delmar, boarded appellant's local freight train No. 84 at Biscoe, Ark., while on the house track about 150 yards west of the depot, at 8 o'clock p. m. on the 17th day of November, 1915, for the purpose of riding down to Dagmar, six miles east of Biscoe. He took a position between the engine tender and the box car with his feet on the drawhead of each, and held to the back of the engine with one hand. The depot was on the north side of the track. In appellant's position his back was toward the north. The train pulled out of the house track far enough east to clear the switch, and this movement placed the engine opposite the depot. The train then backed on the main line west for the purpose of connecting with that portion of the train which had been disconnected when the train came into Biscoe from the west. During the backward movement of the train, and while it was running smoothly, appellee fell to the track. The wheels of the engine backed over both legs and practically severed the limbs below the knees. There was evidence tending to show that the conductor struck the appellee with a brake stick on the shoulder and back, causing him to dodge, release his hold, and fall to the track, where he received the injury. Appellee knew the conductor when he saw him, but no personal acquaintanceship existed between them. They had never had any personal differences, quarrels, or altercations. The trainmen had not seen the conductor from the time they first backed west from the depot onto the house track until about 10 or 15 minutes after the injury. When first seen by them after the injury, the conductor was at the caboose at the extreme west end of the train with a brake stick in his hand, in a dispute with intoxicated bridgemen who were also insisting upon riding the train to Dagmar. The conductor claimed that he rode the engine as the train backed west to pick up cars on the house track, and checked some cars at the switch; then went to the caboose, while the train was pulling out of the house or side track toward the depot. The brakeman operating the switch, nor the one coupling the cars, nor the engineer, nor fireman saw the conductor en route to the caboose from the depot. Appellee admits drinking four bottles of beer during the day. There is evidence tending to show that appellee was drunk immediately before and after boarding the train. There is also evidence tending to show that he was sober at that time. It is conceded that appellee was a trespasser at the time of the injury. Appellant's theory is that appellee fell from the train on account of drunkenness and received the injury. Appellee's theory is that the conductor remained at the depot while the train backed west onto the house track for the purpose of getting additional cars, and when the train pulled out of the switch east toward the depot and stopped that the conductor boarded the train with a brake stick in his hand and discovered appellee stealing a ride, knocked him off the train, and then proceeded to the caboose, where he was found when the injury was reported to him. Appellee was removed from the place where injured to the depot, where he remained for two hours. He was then placed on one of the seats in the caboose attached to a freight train and carried to a hospital in Little Rock. The distance was 52 miles, and the journey required six hours. During the trip he suffered great pain, and it was necessary to give him sedatives all along. When the train jerked and jolted, he would scream out with pain. When informed that his legs would have to be cut off, he began to cry, and asked for a pistol to shoot himself. He arrived at the hospital at 4 o'clock in the morning, and about 8 o'clock the following night his legs were amputated. He remained in the hospital for 9 months. At the time of the trial, some 2 years after the injury, one limb was still raw, and the other not entirely well. Appellee was 32 years of age at the time of the injury, and had an expectancy of 33.9 years. His average earning capacity was about $65 per month.

Appellee brought suit against appellant in the Calhoun circuit court for $50,000 compensatory and $5,000 punitive damages. He recovered a judgment for $25,000 as compensatory damages and $2,500 punitive damages, from which an appeal has been properly prosecuted to this court.

It is insisted that the court erred in refusing to give a peremptory instruction to the jury in favor of appellant. If there is sufficient legal evidence in the record to sustain the finding of the jury to the effect that Mr. Dale, the conductor, while acting in the scope of his employment, knocked appellee off of the train under his control, which was the proximate cause of the injury, then appellant was not entitled to a directed verdict in its favor. It is a settled principle of law in this state that a railroad company is liable for the tortious acts of its servants resulting in the injury of another, if acting at the time within the scope of his employment, or in the line of his duty. Railway Co. v. Hackett, 58 Ark. 381, 24 S. W. 881; St. L., I. M. & S. R. Co. v. Grant, 75 Ark. 579, 88...