Pine Bluff & A. R. Ry. Co. v. Washington

• Decision Date: 04 January 1915
• Docket Number: (No. 94.)
• Citation: 172 S.W. 872
• Parties: PINE BLUFF & A. R. RY. CO. v. WASHINGTON.
• Court: Arkansas Supreme Court

172 S.W. 872

PINE BLUFF & A. R. RY. CO. v. WASHINGTON.

(No. 94.)

Supreme Court of Arkansas.

January 4, 1915.

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

Action by Lizzie Washington against the Pine Bluff & Arkansas River Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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 conductor 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 backwards and threw up my hands. The pistol ball went through my arm and broke it."

The plaintiff admitted that she was what was ordinarily termed "the woman of Tom Jackson," and that she had told him that 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 then 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.

S. H. West, of St. Louis, Mo., and Bridges & Wooldridge, of Pine Bluff, for appellant. T. Havis Nixon and Coleman & Gantt, all of Pine Bluff, for appellee.

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

It is earnestly insisted by counsel for the defendant railway company that a carrier is not liable to 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 called the rule of general liability, which has been defined as follows:

"A corporation may be held liable to exemplary or punitive damages for such acts done by its agents or servants acting within the scope of their employment as would, if done by an individual acting for himself, render him liable for such damages."

See case note to 48 L. R. A. (N. S.), page 38.

In the case of Little Rock Railway & Electric Co. v. Dobbins, 78 Ark. 553, 95 S. W. 788, the court held:

"A corporation, as distinguished from an individual, is liable in punitive damages for the malicious acts of its agents, done within the scope of their employment, although such acts were not ratified by it."

In that case the allegations and proof on the part of the plaintiff were that a street car conductor maliciously and without provocation subjected one of defendant's passengers to humiliating insults and wrongfully caused him to be arrested and removed from the car in which he was riding.

In the case of St. L., I. M. & S. Ry. Co. v. Dowgiallo, 82 Ark. 289, 101 S. W. 412, this court held:

"A railroad company is liable for a wrongful assault upon a passenger committed by a brakeman having duties to perform with reference to the comfort and safety of passengers, even though in making such assault, the brakeman departed from the line of his duty."

In that case, according to the testimony of the plaintiff, the brakeman on the train came into the car and cursed him and beat him over the...