Missouri Pac. R. Co. v. Kellogg

• Decision Date: 02 June 1924
• Docket Number: (No. 24.)
• Citation: 262 S.W. 675
• Parties: MISSOURI PAC. R. CO. v. KELLOGG et al.
• Court: Arkansas Supreme Court

262 S.W. 675

MISSOURI PAC. R. CO. v. KELLOGG et al.

(No. 24.)

Supreme Court of Arkansas.

June 2, 1924.

Rehearing Denied June 30, 1924.

Appeal from Circuit Court, Greene County; W. W. Bandy, Judge.

Suits by W. E. Kellogg and another against the Missouri Pacific Railroad Company. From separate judgments for plaintiffs, defendant appeals. Judgments reversed, and causes remanded for new trial.

Thos. B. Pryor, of Ft. Smith, and Gordon Frierson, of Jonesboro, for appellant.

J. M. Futrell and Jeff Bratton, both of Paragould, for appellees.

HUMPHREYS, J.

Appellees instituted separate suits against appellant in the circuit court of Clay county, Western district, to recover damages in the sum of $3,000 each for mistreatment alleged to have been received by them at its depot in Knoble, after purchasing tickets and while waiting for their train. As amended each complaint set up two grounds as a basis for recovery, first, mistreatment received at the hands of a freight hustler employed around the depot, and, second, a failure on the part of appellant to protect appellees, while waiting at the depot for their train, from mistreatment at the hands of third parties. The complaint of W. E. Kellogg as amended alleged that said employee, in company with divers other persons unknown to him, used violent, abusive, and insulting language to him, assaulted and forced him to leave the depot at Knoble, and walk, in the nighttime, to Stonewall to take the train; that appellant's station agent was informed of the mistreatment being administered to him, but refused to protect him. The complaint of Irene Kellogg contained the same allegations, except she did not charge therein that the parties assaulted her. Appellant filed an answer to each complaint, denying the material allegations contained therein.

The causes were tried together upon the pleadings, the testimony introduced by the respective parties, and the instructions of the court, which resulted in separate verdicts and judgments in favor of appellees, from which is this appeal.

The testimony introduced by appellees was, in substance, to the effect that on the night of January 28, 1923, appellees bought tickets from appellant's station agent at Knoble, entitling them to transportation to Paragould, and, while waiting at the depot for their train, a freight hustler around the depot, who was an employee of appellant, in company with others, who were not employees of appellant, called W. E. Kellogg out of the waiting room, and, after abusing and beating him, forced him and his wife to walk to Stonewall; that said parties used violent, abusive, and insulting language to Irene Kellogg; that when they called W. E. Kellogg out onto the platform and began to abuse and beat him Irene Kellogg asked the station agent to protect them, which request was refused. Appellees admitted they were dope fiends, and that they had been frequently arrested, excluded from Memphis, and notified by officers to leave other towns.

The testimony introduced by appellant was, in substance, to the effect that its freight hustler offered no indignities to appellees; that he had not participated in the abuses and assault, and that the station agent knew nothing of the indignities offered or the assault made upon them; that Irene Kellogg had not called upon him to protect her and her husband; that the freight hustler had nothing to do with...