Kansas City Southern Ry. Co. v. Pinson

• Decision Date: 03 January 1928
• Docket Number: No. 5015.,5015.
• Citation: 23 F.2d 247
• Parties: KANSAS CITY SOUTHERN RY. CO. v. PINSON.
• Court: U.S. Court of Appeals — Fifth Circuit

23 F.2d 247 (1928)

KANSAS CITY SOUTHERN RY. CO. v. PINSON.^*

No. 5015.

Circuit Court of Appeals, Fifth Circuit.

January 3, 1928.

J. Q. Mahaffey, of Texarkana, Tex. (John J. King and J. I. Wheeler, both of Texarkana, Tex., and Lloyd E. Price, of Fort Worth, Tex., on the brief), for plaintiff in error.

Wright Patman, of Texarkana, Tex. (J. A. R. Moseley, Jr., of Texarkana, Tex., and G. T. Bartlett and C. R. Newland, both of Linden, Tex., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the defendant in error, a minor, suing by her next friend, to recover damages for personal injuries resulting from a hound dog, named Rock, biting her while she was in the waiting room of the defendant in error's depot at Leesville, Louisiana, at about 3 o'clock in the morning of December 9, 1923, soon after two passenger trains left that station. The parties are herein referred to by their designations in the trial court.

The plaintiff, accompanied by her mother, came from Shreveport as a passenger on a train of the defendant. Upon their arrival at Leesville, the two went into the waiting room to see the ticket agent about their baggage and to ask him for information as to getting a taxi or service car to carry them to the residence of a kinsman. While plaintiff was at or near the ticket window, waiting for the ticket agent to come there; the dog bit her on the leg; the bite causing her to jump or turn with great force against the ledge of the ticket window, with the result that she sustained the injuries complained of. The plaintiff's petition charged that defendant's employees were negligent in harboring the dog at its depot and permitting it to remain around its station several months prior to the time it bit plaintiff, in failing to discover the presence of the dog in the waiting room and to cause it to leave that room before the arrival of plaintiff, and in failing to protect plaintiff from the dog. The allegations of negligence were put in issue. There was evidence to the following effect:

Rock was owned by C. L. Adams, a resident of Leesville. He was accustomed to roam about the residence and business parts of the town, including a restaurant and several stores across the street from the depot. During several months prior to his biting plaintiff, he was frequently seen "around the depot." He was seen frequently on the defendant's premises with F. S. Ball, a special agent of the defendant, who was charged with the duty of protecting its property from trespass and theft. He was not a vicious or unfriendly dog when kindly treated, but would bite when stepped on or hurt, intentionally or accidentally. There was no evidence tending to prove that the dog was in the habit of being in the waiting room of defendant's depot in Leesville, that he was enticed or knowingly permitted by any employee of the defendant to enter or remain in its depot, that he was ever seen in the waiting room prior to the night plaintiff was bitten, that the ticket agent or any employee of the defendant knew that the dog was in the waiting room before it bit the plaintiff, or how long the dog was in the waiting room before plaintiff was bitten. At the conclusion of the evidence the court refused a requested instruction to the jury to return a verdict for the defendant.

The...