Payne v. McDonald

• Decision Date: 03 October 1921
• Docket Number: 132
• Citation: 233 S.W. 813,150 Ark. 12
• Parties: PAYNE v. MCDONALD
• Court: Arkansas Supreme Court

233 S.W. 813

150 Ark. 12

PAYNE v. MCDONALD

No. 132

Supreme Court of Arkansas

October 3, 1921

Appeal from Polk Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

J. B McDonough, for appellant.

The court should have directed a verdict in favor of defendant. The facts of the case bring it within the rule announced in 135 Ark. 76; 122 Ark. 516; 97 Ark. 24; 32 L. R. A. (N. S.) 529; 111 Ark. 288; 4 R. C. L. 606 to 608.

It would have been a violation of the Interstate Commerce Act to have permitted Wright, the obstreperous passenger, to ride without paying his fare. 34 U.S. St. at L. Sec. 584; Compiled Stat. U.S. 1918, Sec. 8563, par. 5; also a violation of our State law. C. & M. Digest, §§ 848, 850, 917, 919 and 1631.

While the carrier owed a duty to the passenger to protect her, yet its servants did all within their power in a gentlemanly manner to afford such protection, and the judgment should be reversed. 204 S.W. 508; 84 Ark. 194.

Norwood & Alley, for appellee.

The issues were fairly submitted to the jury, and the verdict has settled them against defendant, and on appeal such verdict will not be set aside when supported by substantial evidence. 144 Ark. 227; Id. 401; 143 Ark. 122; Id 565; 142 Ark. 159; 13 Ark. 474; 12 Ark. 43.

The cases cited by appellant in support of his contention that a verdict should have been directed in its favor, do not support his contention.

Instruction No. 2 was properly given. 122 Ark. 521. Only a general objection was made to the instruction, whereas appellant should have pointed out his objections and offered what he considered a proper instruction. 71 Ark. 475; 87 Ark. 528; 56 Ark. 594; 69 Ark. 632.

Instruction No. 3 finds support in vol. 2, §§ 580-1-7 White on Personal Injuries on Railroads; 142 Ark. 159; 97 Ark. 28; 55 Ark. 248; 51 Ark. 459. After a general objection only was made at the trial on appeal, specific objections cannot be pointed out for the first time. 99 Ark. 226.

OPINION

MCCULLOCH, C. J.

Appellee sued appellant, John Barton Payne, as designated agent of the Kansas City Southern Railway Company, in the circuit court of Polk County, to recover for injuries alleged to have been received while she was a passenger on a train operated on said railroad. The basis of appellee's claim is that there was a quarrel or controversy in her presence between the train auditors and a passenger, which became so violent that it excited and frightened her, and that she became seriously ill, and, being pregnant, a miscarriage subsequently resulted, as well as ill health in other respects. The answer of appellant contained appropriate denials of all the charges contained in the complaint. On a trial of the issues before a jury, there was a verdict in appellee's favor assessing damages in the sum of five hundred dollars.

One of the contentions made for reversal of the judgment is that the evidence is not sufficient to sustain the verdict. Appellee took passage on a train at Texarkana en route to Grannis, a station in Polk County. She had her four children with her, ranging in age from five to eleven years, and two of her children were placed in a seat across the aisle from her, and the other two occupied the seat with her. There were two train auditors, Patterson and Whitehead, the latter being a new and inexperienced man, and the former being on duty merely for the purpose of "breaking in" the new man.

There was a stop in the yards at De Queen for the purpose of setting in a new car or setting one out, and during this stop a man named Wright, who was an employee of the railroad in some capacity not shown in the record, boarded the train and entered the coach occupied by appellee. Wright met the two auditors in the aisle immediately in front of the seat occupied by appellee and presented a pass, which was found to have expired, and, on the refusal of the auditors to honor the pass, Wright drew out his union card and presented that to the auditors, claiming the right to free transportation on the faith of his union card. The auditors refused to permit Wright to ride, and the latter became angry and used boisterous language, the extent of which is controverted in the testimony. Appellee in her testimony relates the substance of the occurrence, as follows:

"A. Well, Wright got on the train and wanted Patterson to recognize his pass, and he told him it was out of date, and he couldn't ride on that, and Wright cursed him, and he stood there and let him keep on cursing him and abusing him and used very foul language, and he stood there, I suppose, fifteen or twenty minutes, maybe longer than that, just using that talk over and over until the train started out, and he taken the cash fare from Wright, and let him ride on the train, and he got so abusive until Patterson made an attempt to use a gun right between me and my little children.

Other parts of appellee's examination are as follows:

"Q. Did they pass any licks?" "A. No sir. * * *" "Q. Just state what they did?" "A. Well, they cursed, and just kept cursing and cursing." "Q. Who did?" "A. Wright." "Q. What did Patterson do?" "A. He just stood there and listened at it." "Q. Did he use any abusive language?" "A. No, I don't reckon he did." "Q. What made him start to draw his pistol?" "A. He just told him to hush, and he didn't hush, and he put his hand back in his pocket." "Q. What did you do then?" "A. I don't know what I did do." "Q. Was he close to you when he started to shoot?" "A. Yes, sir; right at my arm." "Q. Did he make any effort to get Wright to leave the train?" "A. He just told him to get off, and he didn't do it, and he just kept standing there listening at him."

On cross-examination of appellee, the following occurred: "Q. Wright was the man that did the swearing and cursing?" "Yes, sir." "Q. You didn't hear either of the other two men swear or curse?" "A. No, sir." "Q. They didn't swear any at all?" "A. No, sir; they didn't swear." "Q. They didn't use any language of any kind in the way of insulting language?" "A. Not any profanity of any kind; just told him to get off, that he didn't want to fight dogs."

Appellee testified further concerning her fright and excitement and illness which immediately ensued and resulted in a miscarriage. The two auditors were introduced as witnesses, and each testified that they used no improper language nor made any attempt to draw a pistol, and that they were not negligent in any respect. The substance of their testimony is that when Wright presented his pass and union card, which were refused, he became obstreperous and they called the conductor, who required him to pay his fare in money, and that this ended the controversy.

We are of the opinion that the evidence was legally sufficient to warrant a submission of the issues to the jury. Hines v. Rice,142 Ark. 159, 218 S.W. 851. The evidence justified a finding that Wright became obstreperous and used violent, insulting and profane language, and that the auditors, instead of quelling the disturbance and taking steps to have him ejected, negligently permitted the passenger to continue his conduct for an unreasonable length of time, and even participated in it by making a move as if to draw a pistol, and in replying to the invitation to fight by saying "they did not want to fight dogs." There is also sufficient evidence that appellee's injuries, both physical and mental, resulted from the fright, which was caused by her critical condition of pregnancy.

It is next contended very earnestly that the court erred in refusing to exclude all of the testimony of appellee which related to the conduct of Wright, the contention being that the allegations...