St. Louis, I. M. & S. Ry. Co. v. Dowgiallo

CourtSupreme Court of Arkansas
Citation101 S.W. 412
PartiesST. LOUIS, I. M. & S. RY. CO. v. DOWGIALLO.
Decision Date08 April 1907
101 S.W. 412
ST. LOUIS, I. M. & S. RY. CO.
Supreme Court of Arkansas.
April 8, 1907.

Appeal from Circuit Court, Sebastian County; Styles T. Rowe, Judge.

Action by Nicholas Dowgiallo against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Oscar L. Miles, for appellant. John H. Vaughn and Dan Danielson, for appellee.


Appellee instituted this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages alleged to have been sustained while a passenger on appellant's train. He alleged in his complaint that he was a passenger on appellant's train; that the train was in

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charge of a conductor and brakeman, who were servants of appellant; and that said brakeman wrongfully, unlawfully, and maliciously assaulted and beat him while he was on the train as a passenger, and also used abusive and profane language towards him. The defendant answered this complaint, and denied specifically all the averments of the complaint, and, in addition thereto, set up the contributory negligence of the plaintiff, by his own wrongful, willful, and unlawful conduct, brought about and caused whatever injury he may have received from any one upon said passenger train. The case was tried before a jury, and the trial resulted in a verdict and judgment for the sum of $400 in favor of the plaintiff.

The plaintiff testified, in substance, that while he was a passenger on defendant's train going from Ft. Smith to Jenny Lind, and while he was engaged in conversation with another passenger, Donahue, the brakeman on the train, came into the car and cursed him and beat him severely over the head with a lantern. He testified that he was not disorderly at the time and gave the brakeman no provocation for the assault. Several other witnesses introduced by plaintiff testified to the same effect. Donahue and several other witnesses introduced by defendant testified that Donahue came into the car and got upon the arm of a seat to light a lamp, when plaintiff addressed a vile epithet towards him, and he struck plaintiff over the head with the lantern in his hand. There was a sharp conflict in the testimony as to which of the two — plaintiff or Donahue — was the aggressor and at fault in the encounter. According to the testimony of the plaintiff and his witnesses, the assault was unprovoked, and was willfully and wrongfully committed. If Donahue and the other witnesses introduced by defendant are to be believed, plaintiff was entirely at fault in the beginning and provoked the assault by the use of vile language toward Donahue. The jury settled this conflict in favor of the plaintiff.

The court gave the following instructions, at the request of plaintiff, which the defendant objected to, and now assign as error: "(1) You are instructed that it is one of the prime duties resting on a railroad company to protect the passengers from assaults and injuries by its servants, and the question of its liability for a breach of this duty depends upon whether or not the servant acted within the course of his employment. (2) You are instructed that it is the duty of a common carrier not only to carry its passengers safely, but to protect them from ill treatment from its servants and other passengers. A common carrier is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make its passenger's journey safe and comfortable."

Now these instructions, if given in a negligence case, would be erroneous, because they impose too high a degree of care upon the carrier, and in effect make the carrier the absolute insurer of the safety of the passenger. But in this case, where the question involved is whether or not a...

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