Missouri Pac. R. Co. v. Curcio

• Decision Date: 19 May 1924
• Docket Number: (No. 381.)
• Citation: 261 S.W. 896
• Parties: MISSOURI PAC. R. CO. v. CURCIO.
• Court: Arkansas Supreme Court

261 S.W. 896

MISSOURI PAC. R. CO. v. CURCIO.

(No. 381.)

Supreme Court of Arkansas.

May 19, 1924.

Appeal from Circuit Court, Monroe County; Geo. W. Clark, Judge.

Action by Antonio Curcio against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Thomas B. Pryor, of Ft. Smith, and Daggett & Daggett, of Marianna, for appellant.

Bogle & Sharp, of Brinkley, and Emerson & Donham, of Little Rock, for appellee.

McCULLOCH, C. J.

The plaintiff. Antonio Curcio, is a native of Italy, a naturalized citizen of the United States, and a musician by profession. While employed as a member of a band of music accompanying a traveling show, he came to Little Rock on October 7, 1922, for a week's engagement. The entire outfit traveled in special coaches, which were stored in the railroad yards, and the members of the outfit lived in the coaches during their stay. There was a pathway along the track from the coaches to a nearby street, which afforded a way for the people occuying the cars to go in and out between the street to the cars, and one night during the stay in Little Rock plaintiff, along about midnight, left the coach, walked along the pathway to the street, and thence to a restaurant, where he made a small purchase, and on his return, after having traveled down the track to a point opposite the cars, he turned across the track, and was knocked down and run over by a moving box car which was being switched in the yard.

The show train was brought to Little Rock over the line of the defendant, Missouri Pacific Railroad Company, under special contract with the show company; the cars were stored in the yards of defendant company, and it was a car operated by defendant company being switched in the yard which struck and ran over the plaintiff. This is an action to recover damages for the injuries received. Plaintiff's foot and ankle were so badly mangled that it was necessary to amputate the leg above the ankle, and there were two additional operations shown to have been necessary on account of the original injury. Plaintiff recovered as damages a sum of money not claimed to be excessive, if he was entitled to recover at all.

Negligence of defendant's servants is alleged in operating the train of cars which was being switched in the yard without keeping a lookout, and without giving any signal or warning of the movement of the cars. Appellant denied the allegations of negligence, and also pleaded as a further defense the special contract with the show company, which contained a clause exempting the defendant from liability for damages caused by negligence of defendant's servants or from any other cause.

The contract between defendant and the show company provided for transportation by the railroad company in cars to be furnished, some by each company, of the employees and paraphernalia and the wild and domestic animals of the show company from place to place for transportation charges specified in detail in the contract, and the clause of the contract under which defendant claims exemption from liability reads as follows:

"In consideration of the agreement of said party of the first part to run said regular or special train or trains as hereinbefore specified, and at and for the reduced rates aforesaid, and in further consideration of the fact that many of the animals to be transported as aforesaid are wild and ferocious, and not such as said party of the first part is by law required to receive and transport as a common carrier, it is further understood and agreed that the said party of the first part shall be, and is hereby, wholly released from responsibility for any and all damages, loss or injury which may accrue to said party of the second part, and to the cars and coaches and to the show and property of said party of the second part and on account of death of or injury to the employees of said party of the second part or of or to all persons connected with said show in any capacity whatsoever. whether such damage, loss, death or injury result from the negligence of said party of the first part, its servants, or agents, or otherwise, but if, notwithstanding this exemption from liability, said party of the first part shall be held liable in any legal proceedings for loss or damage suffered by said party of the second part, then, and in that event, it is hereby agreed that such damages shall be and they are hereby liquidated and stipulated not to exceed the actual value of the animals or the property aforesaid, which, for the purpose of this agreement, is by said second party stipulated, agreed and represented in no case to exceed the sum per head for each animal as follows, to wit: (Here follows a list of valuations)."

The contract contained an additional clause whereby the show company undertakes to indemnify the defendant "against any and all suits, claims and damages of all persons whomsoever alleging liability for loss or damage to cars or railway equipment, or to baggage or other property or damage resulting from any injury to or death of any person or persons employed by said party of the second part or connected with said Wortham-Waugh-Hofer Greater Alamo Shows or permitted by said second party, his servants or agents to ride in, about or upon said cars and coaches, or to be transported as aforesaid, or to be upon and about the premises of said first party, whereby or by reason whereof such persons may be killed or injured while being transported in or upon said cars or coaches, or while they may be in or upon the premises of said first party."

This contract was admitted in evidence over the objections of plaintiff's counsel, and the court submitted the...