Pine Bluff & Arkansas River Railway Company v. Washington

• Decision Date: 04 January 1915
• Docket Number: 94
• Citation: 172 S.W. 872,116 Ark. 179
• Parties: PINE BLUFF & ARKANSAS RIVER RAILWAY COMPANY v. WASHINGTON
• Court: Arkansas Supreme Court

172 S.W. 872

116 Ark. 179

PINE BLUFF & ARKANSAS RIVER RAILWAY COMPANY v. WASHINGTON

No. 94

Supreme Court of Arkansas

January 4, 1915

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

STATEMENT BY THE COURT.

Tom Jackson, a brakeman for the Pine Bluff & Arkansas River Railway Company, shot Lizzie Washington with a pistol while she was riding in a passenger coach of the railway company. Lizzie Washington instituted this action against the railway company to recover damages therefor. She testified substantially as follows:

The Pine Bluff & Arkansas River Railway Company operated a train from Pine Bluff to Reydel. I lived at English. On the 22d day of December, 1913, I had been to Pine Bluff and was returning home in the afternoon as a passenger on the defendant's train. I had paid my fare and the conduct or had taken up my ticket. Tom Jackson was the brakeman on the train and he came up to me and asked me to go to Reydel with him that night and stay with him. I told him I was not going with him any more and he said that "If I didn't do him no good I wouldn't do no other no good." He then rushed out of the car and into the baggage car and came back and said "Lizzie, I want you to go to Reydel with me." I told him my business was urgent and I couldn't do it. He then said, "You can go with me, you , or I am going to pay off with you." He immediately pulled his pistol out of his pocket and shot me. I was sitting down at the time and when I saw him draw his pistol I fell backward and threw up my hands. The pistol ball went through my arm and broke it.

The plaintiff admitted that she was ordinarily termed "the woman of Tom Jackson," and that she had told him she was going to quit him. She said that was why he shot her, and that he told her if she would not have him any more he would kill her.

Several other passengers detailed the shooting in substantially the same way that plaintiff did.

There was evidence tending to show that it was among the duties of brakeman Jackson to see to the comfort and safety of passengers riding in the coach in which he shot plaintiff.

Jackson testified in behalf of the railway company substantially as follows:

On the evening of the shooting a fellow was on the train cutting up and plaintiff sent for me to put him out. I got the man and carried him into the baggage car and I went back and asked the plaintiff if she didn't want to go to Reydel and spend the night with me. She replied that she had other business and I then said, "You are fixing never to walk with me any more." A little later I asked her why she had quit sending my breakfast to me and she replied that she had other business. I then said, " your other business you are always telling me that," and I went and got a pistol which Mr. Hammett had given me to carry to Pine Bluff to have repaired and came back where plaintiff was sitting and took the pistol out of my pocket and attempted to stick it in her muff, meaning for her to return it to Mr. Hammett. The pistol was discharged accidentally and I never had any intention of shooting her.

The jury returned a verdict in favor of the plaintiff for compensatory damages in the sum of $ 3,000; and for exemplary damages in the sum of $ 2,000. From the judgment rendered the defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

S. H West and Bridges & Wooldridge, for appellant.

1. A carrier is not liable in exemplary or punitive damages for the wanton and malicious assault on a passenger by its servant acting within the scope of his authority, which it has in no way antecedently authorized or subsequently ratified. 147 U.S. 101, 106; 80 S. E. (Va.) 749, 751; 7 Ala. 622; 56 N.Y. 44, 47, 48; 63 Ark. 387, 393; The State Rights, Crabbe, 22, 47, 48; The Golden Gate, McAllister, 104; 7 Cal. 118; 13 La.Ann. 445; 16 Mich. 447; 69 Ill. 478, 481; 75 Ill. 167; 115 Ill. 331; 7 Ala. 622, 629; 69 Ala. 373, 379; 57 Wis. 570; 21 Vroom (N. J.) 481; 99 Pa.St. 63; 72; 1 Exch. 131, 140; 26 Upper Can. Q. B. 422; 13 Cyc. 114.

2. The rule has been stated that if the act was wanton and wilful, or with such gross want of care and regard for the rights of others as that malice may be presumed, the court will instruct the jury that they may find, in addition to a reasonable compensation for the injury, such sum in damages as the circumstances may justify. 42 Ark. 321, 328; 53 Ark. 7; 84 Ark. 241; 87 Ark. 123, 127. Testing the evidence by this rule, it is insufficient to sustain a verdict for punitive damages. There is lacking "that element of wilfulness or conscious indifference to consequences from which malice may be inferred." The shooting was plainly the result of a lovers' quarrel, a quarrel between a man and his paramour, taking place under the stress of undue excitement of passion, and appellee by her own conduct is equally responsible with the brakeman therefor. Nothing which might have been done by appellant would have prevented or tended to prevent the injury. When a passenger gives a carrier's employee cause for irritation, and his conduct is such as would in a measure excuse the acts of the employee, and is a natural result of the passenger's own conduct, punitive damages should not be awarded. 87 Ark. 123, 127; 41 Ark. 295, 299; 94 Wis. 549.

3. In charging the jury the court erred in failing to instruct them that, before appellee could recover, they must find that the brakeman was acting within the line of his employment at the time of the shooting or assault. 84 Ark. 193; 99 Ark. 233, 235; 103 Ark. 362, 366.

4. The exemplary damages awarded are excessive. Watson on Personal Injuries, § 714; Id. § 741; 24 Wis. 183, 187; 132 S.W. 503.

5. Appellant's reasons for discharging the brakeman constituted a fact which legitimately might have been considered by the jury in mitigation of punitive damages, and the court erred in excluding proof thereof. Watson on Pers. Injuries, § 737; 68 Me. 279; 8 W. & S. (Pa.) 189.

6. There was no evidence that the injury to appellee was of a permanent character. It was error, therefore, to instruct the jury that compensatory damages might be awarded where "the injury appears to be of a permanent, continuing character." 109 Ark. 29, 31; 106 Ark. 177; 163 S.W. 107.

7. The verdict both for actual and compensatory damages, is grossly excessive. 148 S.W. 261; 90 Ark. 107; 102 Ark. 499; 98 Ark. 425; 87 Ark. 109.

T. Havis Nixon and Coleman & Gantt, for appellee.

1. No antecedent authority nor subsequent ratification need be shown to hold a railroad company liable in punitive damages for the malicious acts of its agents, in this State. 7 Labatt, Master & Servant (2 ed.), § 2554, note 4; 57 Me, 202; 36 N.H. 9; 78 Ark. 553, 561; 42 Ark. 321; 56 Ark. 51; Watson, Pers. Injuries, § 730; Id. § 731; 147 U.S. 101; 3 Moore on Carriers (2 ed.), 1725, 1726; 82 Ark. 289.

2. The evidence is sufficient to sustain the verdict for punitive damages. The court's instructions to the effect that "if you find that the assault was wilful, wanton, malicious and without cause, then you may award to the plaintiff, in addition to actual and compensatory damages * * * such further sum, commensurate with the wrong done, as in your opinion the evidence will justify by way of punitive damages," contains all the elements which this court has said should be given in an instruction bearing on punitive damages. 87 Ark. 127. See also 83 Ark. 9; Watson Pers. Injuries, § 722; Id. § 719; 53 Ark. 53 Ark. 7; 59 Ark. 215.

3. In reply to appellant's objection that the court in its instruction should have told the jury that it was necessary for them to find that the brakeman was acting within "the scope of his employment," etc., it is sufficient to say that its answer raised no such issue; that it raised only a general objection to the instruction; that there was no dispute in the evidence on this point, and that appellant offered no correct instruction covering the point. The brakeman's own testimony shows that it was his duty to go through the train, "with opportunities to come in personal contact with passengers," and that he had duties to perform with reference to their comfort and safety. 82 Ark. 289; 78 Ark. 553; 54 L.R.A. (Ala.) 752; Labatt, M. & S., § 2459; 103 Ark. 361, 367.

4. The exemplary damages awarded in the verdict are not excessive. 103 Ark. 369-370; 130 Ky. 759.

5. The court correctly excluded the testimony offered by appellant to show its reasons for discharging the brakeman. This court has repudiated the doctrine under authority of which appellant sought to introduce this testimony. Supra, div. 1. Moreover, appellant did not show what the witness would have testified had be been permitted to answer. 87 Ark. 123.

6. If the appellant desired to object to the use of the language "if the injury appears to be of a permanent, continuing character," on the ground that there was no evidence of a permanent injury, it should have called the court's attention to it by specific objection. 109 Ark. 569, 572.

7. The actual and compensatory damages awarded are not excessive. Supra; 38 L.R.A. 432; 65 P. 241.

OPINION

HART, J., (after stating the facts).

It is earnestly insisted by counsel for the defendant railway company that a carrier is not liable for exemplary or punitive damages for a wanton and malicious assault upon a passenger by a servant acting within the scope of his authority which it has in no way antecedently authorized or subsequently ratified. There is a division of authorities on this question and counsel have cited a number of authorities to sustain their position, but we do not deem it necessary to discuss or review them for the reason that we have already decided adversely to their contention. This court has adopted what is usually...