Action by C. S. Price and others against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.
J. F. Price was killed on the night of December 16, 1898, by falling from a passenger train of the St. Louis, Iron Mountain & Southern Railway. The "cause of fall unknown to jury" was the verdict of the jury of inquest. The widow and children of Price, appellants, sued the appellee, alleging, inter alia, that the proprietor of the Silver Moon Hotel, at Texarkana, where Price was stopping, being aware that he expected to go to Newport, Ark., to visit his wife, who was then sojourning there, took Price, who was in an insensible condition from intoxication, to appellant's depot at Texarkana, and delivered him to the conductor of the Cannon Ball train; stating to the conductor that he desired Price to be put off at Newport, and paying his fare to that point. The complaint then continues as follows: "The said conductor received the deceased in such insensible and irresponsible condition, well knowing the same, and, having divested him of all his valuables, including about twenty-seven dollars in money, said conductor took charge of his money, valise, and other valuables, for which he gave a receipt to said proprietor of the hotel, and said conductor caused the deceased to be laid down on the seats near the door of the smoking car of said train, and there left him, and that the defendant received said deceased, and undertook to transport, carry, and safely deliver him at Newport, Arkansas, well knowing the insensible and irresponsible condition of said deceased. That after having deposited the deceased in said smoking car, the conductor, brakeman, and other employés of defendant on said train paid no further attention to the deceased, and negligently and carelessly failed to exercise any diligence or care whatever with respect to said deceased, by reason of which he came to his death. That just before said train reached the station at said Cabot, it being then nighttime, the deceased awoke from his drunken stupor, in a dazed and bewildered condition, and, not knowing or realizing his situation or whereabouts, while in said drunken and irresponsible condition, arose, and without being warned, cautioned, or restrained as he should have been, staggered through the door of the car, which was but a few feet distant, and out upon the platform of said car—the train being then moving at great rate of speed—and was thrown from said car to the ground, thereby receiving mortal injuries, from which he died, and which could and should have been prevented by the exercise of proper care by the defendant, and that his dead body was discovered lying upon or near the defendant's railway track, horribly mutilated, on the morning of the 17th of December, 1898. That upon the arrival of said Cannon Ball train at Newport, the said conductor left the valise belonging to said deceased at the depot at Newport; stating that deceased was lost somewhere between Little Rock and Newport." That deceased at the time of his death was earning a total income of $4,000 per annum. The plaintiffs were obliged to expend $500 for the burial expenses of deceased, and, by reason of the wrongs and injuries complained of, had sustained damages in the sum of $10,000, for which they prayed judgment. The defendant, for its answer, denied every material allegation in the complaint, save that it was a corporation and common carrier, and that the deceased was intoxicated, and alleged contributory negligence of the deceased, and that whatever injuries he received were due to his intoxication and want of care. There was a trial at the November term, 1900.
The proprietor of the hotel, who put deceased, Price, on the train, testified, so far as his evidence is material here, as follows: "I took him in, and he had a valise, with a quart bottle of whisky in it. I put him in care of the conductor, and paid his fare, and gave the remainder of his money to the conductor, to take care of until he got home. I told the conductor he was unable to take care of himself. He didn't seem to know anything. There were two seats in the back end of the car where we took him, and, if I remember right, we put him in the end seat and laid him down. I took out his money, and got the conductor to take his fare out. The conductor told me he would take care of him. I said: `You have to watch him closely. Take care of him.' I opened his valise, and showed him a bottle of whisky and said: `He will need a drink or two before reaching Newport, to keep him from getting too nervous on you.' I don't think he knew what was going on in regard to the money. Anybody could see he was just like a child. The conductor said, `Yes,' he would see that he would be taken care of all right. I told him two or three times. The reason I took him down was that I was uneasy, and
afraid the man was going to die in my house. He told me he wanted to go to Newport; that his wife and boy were there. I never saw him after I put him on the train. This was after 3 o'clock, on the north-bound Cannon Ball train. He must have weighed over 200 pounds, was a square-shouldered, fleshy, strong man, and looked like he carried his age well. I would judge him to be between fifty and sixty, and seemed to be stout and healthy in every way. At that time I did not know the conductor. The deceased walked with me to the depot. Nobody helped me until I came to the train. He fell down a couple of times. I needed help. He fell down from weakness. He was a little stupid and weak. I can't say that I put him on the train before I saw the conductor. I can't say whether the conductor was standing on the platform at the time or not. The conductor and brakeman were standing there, but I am not sure they were on the platform. Somebody pointed out to me the conductor, but I can't swear whether before or after I put deceased on the train. If I am not mistaken, they were on the platform at the time I got on, and helped to put him up there. I think the brakeman helped me, and both were together when I got him on the car. The conversation with the conductor was after I put him on the car. I had not gotten off. I was standing in the car when he took the money. I had the conversation spoken of with the conductor, inside the car. The man seemed perfectly quiet; not disposed to get up nor run around; perfectly content to lie there. That man that helped me on the train, I think, had on a brakeman's cap. I knew the conductor by his receiving the money."
The dead body of Price was found about four miles south of Cabot, on the right of way of the St. Louis, Iron Mountain & Southern Railway Company. The coroner found the body lying in a diagonal position from the railroad track, the feet toward the track, and the head five or six feet from the track. The tie inspector, who informed the coroner of the death, found the body with head and shoulders in the ditch, and he had drawn the body out of the water. The body was soaked from the shoulder to the waist with water. His left arm and leg were broken, and he was badly bruised about the left side of head and face. It was shown that the conductor told the agent at Newport "that he had lost a man between there and Little Rock."
On behalf of appellee the conductor testified, so far as material here, as follows: "I did not see Mr. Ward bringing Dr. Price to the train in December, 1898. I went out as conductor of that train, No. 56. The first I knew of Ward's bringing Price down there was, Mr. Ward was brought to me by Mr. Hall, who stated that he had a man whose fare he was going to pay to Newport. He said: `I have got a man. I want to pay his fare to Newport.' I said: `All right. Why don't you go and buy a ticket?' He said: `I would rather...
