Hines v. Rice

• Citation: 218 S.W. 851,142 Ark. 159
• Decision Date: 09 February 1920
• Docket Number: 169
• Parties: HINES v. RICE
• Court: Arkansas Supreme Court

218 S.W. 851

142 Ark. 159

HINES v. RICE

No. 169

Supreme Court of Arkansas

February 9, 1920

Appeal from Benton Circuit Court; W. A. Dickson, Judge; affirmed.

Judgment affirmed.

W. F Evans and Warner, Hardin & Warner, for appellant.

1. The evidence is not sufficient to sustain the verdict. The defendant was not guilty of negligence. The uncontradicted testimony shows that the sudden and unanticipated assault could not have been foreseen by the most vigilant observation, and the unexpected conflict was repelled by the conductor promptly and successfully. No. liability was proved against defendant, and plaintiff failed absolutely to show the violation of any duty to her as a passenger. The measure of care and duty of the carrier is governed by the laws of Missouri, as the injury occurred in that State. 113 Ark 265-278.

2. A sudden and unexpected attack or assault by one passenger upon another does not render the carrier liable unless it is shown that its employees knew, or could have known, in time to prevent the assault from the wrongdoer's acts and conduct, that he was contemplating injury to his fellow passengers. 204 S.W. 508; 36 Id. 485; 14 Am. Rep 190; 66 A. 1006; 26 Am. Rep. 68; 66 N.Y. 643; 10 C. J. 905; 3 Thompson on Neg., p. 550, § 3087, p. 545; Ib., § 3093; 75 Hun. 548; 90 S.E. 221; 29 N.W. 18; 87 Mo. 74; 198 Mo. 664; 96 S.W. 1017; 7 L. R. A. (N. S.) 231; 8 Ann. Cas. 584; 84 Ark. 193; 118 Id. 396; 70 Id. 136; 4 R. C. L. 1186; 111 Ark. 288; 131 Id. 341; 75 Id. 242.

2. The court erred in instructing the jury as requested by plaintiff. 70 Ark. Ry. Co. v. Wilson; 10 C. J. 905; 17 Id. 1061, § 368; 105 Ark. 210.

3. The court erred in refusing the defendant's instructions. 204 S.W. 508; 96 Ark. 206, 212; 131 Id. 356; 75 Id. 242; 32 L. R. A. (N. S.) 1209; 118 Ark. 396; 135 Id. 480-493.

4. The court erred in admitting testimony over defendant's objection as to the porter's acts and remarks. 84 Ark. 42; 118 Id. 153; 93 N.E. 698; 70 Ark. 143. Also as to whether the conductor or other employee made any efforts to put the drunken man off the train and as to the effect of the drunken man's conduct on her health. 63 Ark. 402; 13 Okla. 563; 134 P. 388; 39 N.W. 884; 74 N.Y.S. 1113; 47 N.J.L. 23; 130 Ark. 546; 126 S.W. 1013.

5. The damages are excessive. 69 Ark. 402; 204 S.W. 565; 118 Id. 31; 120 Id. 54; 124 Id. 229.

Duty & Duty, for appellee.

1. The passenger was intoxicated, and the railway porter knew it and was guilty of negligence in allowing him to remain in the same car, and it was the carrier's duty to warn of danger and protect passengers. 6 Cyc. 600; 80 Ark. 158.

2. The judgment is right on this whole case, and should be affirmed, even if there were slight errors. 80 Ark. 158; 19 Id. 677; 87 Am. Dec. 714; 204 S.W. 511; 3 Thompson on Neg., p 545; 23 F. 637; 6 Cyc. 550, 551; 22 L. R. A. 250; 69 Miss. 421; 45 Ark. 368; 22 L. R. A. 250.

3. There was no error in the instructions and the verdict is sustained by the evidence. 10 C. J. 728; 116 Ark. 179; 128 Mo. 617; 25 S.W. 341; 33 Cyc. 825; 91 S.W. 989; 38 Id. 533; 135 Ark. 493.

4. Fright and fear are elements of damage, and appellant's testimony was competent. 25 S.W. 341. See also 89 Ark. 9; 10 C. J. 727; 96 S.W. 307; 39 Ark. 492; 93 S.W. 1120.

5. The testimony was competent, and there was no error in instructions. 94 U.S. 469; 83 Ark. 488; 118 Id. 569; 83 Id. 587; 130 Id. 83; 118 Id. 569; 95 Ark. 311; 203 S.W. 271.

The refused instructions were not the law of this case, and they were correctly refused. 115 Mo.App. 582; 38 S.W. 533; 40 Ark. 298; 135 Ark. 493; Ib. 480; 120 Ark. 60.

OPINION

WOOD, J.

Appellee, Ethel Anderson Rice, lived at Bentonville, Arkansas. She was teaching school at Anadarko, Oklahoma. She purchased her ticket from the St. Louis & San Francisco Railway Company, hereafter for convenience called appellant, to Oklahoma City, and left her home about 4 p. m. October 29, 1918, going via Rogers to Monette, Missouri, where she arrived about 8 p. m. At Monette she boarded appellant's Oklahoma City train about 11:30 p. m. She went into the chair car and through the car looking for a seat. The seats were all taken except one at the front end of the car. She returned and occupied it because there were no other vacant seats. In the chair car beside her was a large fat man who had his sleeves rolled up and vest on and was in a very unkempt condition. His face was turned toward the window, and he was sprawled out over his seat and appeared to be asleep. As she entered the chair car she asked the man standing at the end of the car for a seat in the Pullman. He stated they could not get one for her, and no one attempted to find her a seat in the chair car. A few minutes after taking the seat, the porter came through the car and made an announcement, that, on account of a wreck, passengers for Neosho should get off the train as they had to detour by way of Joplin. He asked the passengers to show their tickets, and he asked the man sitting beside her for his ticket several times, then reached over and shook him, tried to rouse him up, but got no reply from him. The porter then asked her if she had that man's ticket.

About twenty minutes after the porter went through the train and the train had started, the conductor came in the front end of the car and began taking up tickets. He took appellee's ticket and asked the man beside her for his ticket. He muttered and mumbled, but did not answer the conductor. The conductor then shook him repeatedly and asked him for the ticket. The man answered that he had no ticket. The conductor stood there and quarreled with him about the ticket. He repeatedly asked him for his ticket. Finally, the man said, "That young lady has my ticket," referring to the appellee. The conductor said, "No, she has not your ticket; hunt the ticket up." At that time the appellee was scared and was leaning out toward the aisle trying to get out. The baggage had been piled up at the front end of the car, and the conductor was standing in the narrow place, so appellee could not get out. He stood there and wrangled a long time before the man grabbed appellee. While they were quarreling, he reached out and took hold of appellee. When he grabbed appellee, he was standing up as much as he could get from the chair he was in, but was not entirely out of his seat. He was up somewhat and over toward appellee. His hand came over the back of the seat above appellee's waist. She thought possibly from his talk that the man thought appellee had taken his ticket. The conductor then pushed him over into the window, back in the seat and let appellee out.

Appellee was badly frightened; came near fainting. Someone opened the door, and she went out into the vestibule and sat on the porter's step, where she stayed five or ten minutes when some man back in the car came and offered her his seat and took her inside. The conductor did not then or at any time offer to procure her a seat. She took the seat offered her by the gentleman about half way back on the opposite side. She saw the drunk man take a bottle out of his pocket and drink out of it. Finally he dropped the bottle on the floor of the car and broke it. He had another bottle that he went and got and drank out of that bottle. No one made any effort to put him off or take him into another car. The man stayed on the car several hours until he reached the place where he got off.

The appellee instituted this action against the appellant for damages for personal injuries. The above are substantially the facts upon which she predicated her cause of action.

The appellant denied all the material allegations of the complaint and set up the affirmative defense of contributory negligence on the part of the appellee.

The court, over the objections of the appellant, granted certain prayers of the appellee for instructions and refused certain prayers of appellant.

The jury returned a verdict in favor of the appellee for the sum of $1,000. From a judgment in appellee's favor is this appeal.

Later we will set out and comment upon such other facts as may be necessary.

The appellant first contends that the evidence is not sufficient to sustain the verdict.

The appellee, among other allegations of negligence, alleged in her complaint that, "the trainmen in charge of said train had carelessly, negligently, wantonly and wilfully permitted an insanely drunken man to enter said train and to remain therein and occupy the opposite seat from the plaintiff and among the other passengers." She further alleged that, "the said conductor and parties as aforesaid carelessly and negligently let the drunken man remain in or near the seat occupied by the plaintiff, and permitted him to harass, annoy, and frighten the plaintiff." The complaint alleged that "the drunken man proceeded to arise from his seat and take hold of the plaintiff, and proceeded to and did shake and crush her arm, which greatly pained the plaintiff and terrified her, all of which was well known and observed by said conductor and porter in charge of said train, but that they wantonly, cruelly and negligently permitted said drunken man to assault the plaintiff, when by ordinary care and diligence the same could have been prevented." The appellee further alleged that "said trainmen were guilty of negligence in permitting a man whose conduct was so manifest to enter and remain in said train or passenger car, and when his condition and conduct were well known to the conductor and other employees of the defendant in charge of said train."

The acts of which appellee complains occurred in Missouri. Therefore the laws of that State applicable in such cases must govern in determining whether or not there is any liability against appellant. St. L....