Kansas City, Ft. S. & M. R. Co. v. Sokol

• Decision Date: 19 October 1895
• Citation: 32 S.W. 497
• Parties: KANSAS CITY, FT. S. & M. R. CO. v. SOKOL.
• Court: Arkansas Supreme Court

32 S.W. 497

KANSAS CITY, FT. S. & M. R. CO. v. SOKOL.

Supreme Court of Arkansas.

October 19, 1895.

Appeal from circuit court, Mississippi county; James E. Riddick, Judge.

Action by John Sokol against the Kansas City, Ft. Scott & Memphis Railroad Company to recover damages for the wrongful ejectment of plaintiff from defendant's train. From a judgment for plaintiff, defendant appeals. Reversed.

Adams & Trimble and Wallace Pratt, for appellant. W. A. Percy and St. John Waddill, for appellee.

BATTLE, J.

John Sokol brought this action against the Kansas City, Ft. Scott & Memphis Railroad Company in the Crittenden circuit court to recover damages sustained by him through the unlawful acts of the defendant. He alleged that, having purchased of the defendant a ticket on the 24th of December, 1890, which entitled him to transportation over its road from West Memphis to Jericho, in this state, he entered a passenger train of the defendant going to Jericho, at West Memphis, and delivered his ticket to the conductor; and that thereafter, before he reached Jericho, without any fault or misconduct on his part, the employés of the defendant, with force and arms seized him, and wantonly ejected him, with great indignity, from the train, to the ground below, whereby he was damaged in the sum of $10,000.

The defendant answered, and denied the allegations of the plaintiff, and alleged that he was drunk and disorderly on the train, and guilty of using profane and vulgar language in the presence of lady passengers, and otherwise so misconducted himself as to make it the duty of the conductor to eject him.

The venue in the case was changed, on the application of defendant, from Crittenden to Mississippi county.

The issues were tried by a jury. The evidence adduced in the trial was conflicting. It was proved that Sokol entered a train of the defendant at West Memphis, and was put off by the conductor before he reached Jericho, the place of his destination, at a place which was not a station. But as to the delivery of a ticket or payment of fare by him to the conductor, witnesses were not agreed. The conductor and a brakeman testified that he did not, while he swore that he purchased a ticket from the defendant, which entitled him to transportation in a passenger train over its road from West Memphis to Jericho, and delivered it to the conductor after entering the train, and introduced evidence corroborating his statement. As to the place he was put off, evidence was adduced tending to show it was a short distance beyond the station of Marion, near a trestle, and where the roadbed was four or five feet high, and a ditch filled with water was at the foot of the embankment. It was raining or sleeting at the time he was ejected.

Evidence was also adduced tending to show that Sokol was intoxicated and noisy at the time he was put off the train; that he used profane language in the presence of ladies; and that he attempted to sit in the lap of a colored woman, and, when she remonstrated, cursed. But this evidence was contradicted by other testimony. It does not appear, however, that he was ejected on account of his noise, profane language, or improper conduct, but because he failed to pay fare, or deliver a ticket showing that he had done so.

Witnesses do not agree as to the manner in which he was ejected. Some testified that he was put off in a rude manner; was pitched off while the train was moving with such force that he fell down the embankment, and lay prostrate in the mud and water. Others testified that no violence was used, and that he alighted on his feet, and fell after the men who put him off had left him standing.

The conductor testified that he made a report to the defendant, showing how many tickets he received from West Memphis to Jericho on the day Sokol was ejected, which was sent to Kansas City, but he did not know whether it was then in existence, and did not remember what it showed. There was no evidence that any record was kept of the names of those who purchased tickets or delivered them to the conductor.

Upon the last argument of the case before the jury, Mr. Percy, counsel for plaintiff, who was making it, said:

"Now, gentlemen of the jury, why is this case here, and why are the people of Mississippi county called upon to try a railroad company running through another county for an offense committed in that county? The case is here on a change of venue from the good county of Crittenden, and who got it? Gentlemen of the jury, how did it come here? We find the papers of this case after the trial of it at Marion —"

Mr. Trimble, counsel for the defendant, interrupting, said: "If the court please, we think that it is an improper argument."

Mr. Percy said: "I have no doubt they will try to interrupt me. It is the hit dog that always howls."

The Court said: "I expect that is an improper argument."

Mr. Percy said: "I am not going to read any of the evidence in that case."

The Court: "I think it is improper to refer to the change of venue."

Mr. Percy: "I have a right to read the record in this case."

The Court: "I do not think the jury has anything to do with the change of venue."

Mr. Percy: "Your honor will not let me state to the jury why this case was brought from Crittenden county?"

The Court: "No, sir; because that might defeat the object the defendant had in bringing it from one county to another."

Mr. Percy said: "Very well, sir. I don't blame them for wanting to keep that fact away from the jury."

Mr. Trimble: "Now, we except to that. We think it is an improper statement to make to the jury."

The Court: "I think our supreme court has passed upon the question, and has properly held that it is entirely foreign to the case, and the jury should not consider and counsel should not argue it. I am satisfied Mr. Percy overlooked that at the time."

Mr. Percy: "I don't want to travel out of the record."

The Court: "It is not outside of the record, but it is not proper to comment on it, because it is not a matter that the jury have anything to do with."

Mr. Percy: "I submit this: that if the record shows that this case was removed from Crittenden county upon the affidavits of these parties that they could not get a fair trial, that the feeling in Crittenden county is so strongly against them there, I submit that is a matter of record which can be read to the jury."

The Court: "No, sir. It is not a matter you can read, or the jury can consider, in arriving at their verdict in the case."

Mr. Percy: "Very well, sir," etc.

Again, in the concluding portion of his argument, Mr. Percy said:

"A great many passengers were on board that train, some going to Kansas City. This railroad knows of everybody on there, where all those passengers are, and where they can be found, and they could have been brought here to testify."

Mr. Trimble: "That is not in evidence, and not the truth."

The court said that counsel must confine himself to the evidence.

Mr. Percy: "That is all right. I say this: that they have a record showing where everybody got off that train, and they could, had they so desired, have made an investigation, and found where everybody got off that train. It is probably true that they made an investigation, and found out it would not do them any good to bring them here."

Later in his argument Mr. Percy said: "Now, gentlemen, taking their own theory of this lawsuit, that they put him off because he was too drunk to behave himself, could they sit there, and see him fall down, — a man in that condition, in that sort of weather. They knew that 10, 15, or 20 trains a day were running on that track, and the last that they saw of him was while he was falling down the side of the track. They did not know, and, in the language of Mr. Vanderbilt, they `didn't give a damn', whether the next train that came along ran over him or not."

Mr. Trimble: "If the court please, we object to that as an improper argument."

Mr. Percy: "Let the hit dog howl always. But these men know that what I am saying is so."

The Court: "I hardly think the expression used is in keeping with the dignity of the...