St. Louis, I. M. & S. Ry. Co. v. Hendricks
| Decision Date | 15 January 1887 |
| Citation | 2 S.W. 783 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. <I>v.</I> HENDRICKS, Adm'r, etc. |
| Court | Arkansas Supreme Court |
Action to recover damages for personal injuries. There was a trial by jury, and a verdict and judgment rendered for the plaintiff. Defendant appealed.
Dodge & Johnson, for appellant. Clark & Williams, for appellee.
Fred Cost, who is now dead, brought suit against the appellant to recover damages for personal injuries received, as he alleged in his complaint, and swore upon the trial, by being forcibly ejected from a moving train by a brakeman in the employ of the railroad company. The evidence upon the two sides was contradictory upon every material fact; but the plaintiff's case, as put by himself and one other witness, was that he had been stealing a ride on one of the company's trains by holding to a ladder on the outside of a freight car. When the train stopped at Cabot station, he alighted, and concealed himself until it made a fresh start, when he again mounted the ladder. He was there detected by a brakeman, who caused him to mount to the top of the car, and demanded payment of his fare. Cost had no money, and the brakeman ordered him off the train, refusing his request to wait until the next stand. His manner was threatening, and Cost felt impelled to undertake to descend the ladder; and, when he was in the act of doing so, the brakeman kicked at him, and stamped upon the backs of his hands, and thus forced him to loose his hold. This caused him to fall when the train was running rapidly. One of his feet was crushed by the wheels, and was partially amputated, leaving the heel intact; but the muscle of his leg shrank away, and the physicians were doubtful as to the recovery of its strength. The testimony of the train-men and of another witness for the company was to the effect that the plaintiff lost his hold, or jumped voluntarily from the ladder where he was clinging, without having been spoken to or touched by an employe. Cost was an intelligent German boy about 17 years of age. The jury accepted his version of the matter, and returned a verdict for $5,000 in his favor. The circuit judge directed that a new trial should be granted unless a remittitur of $2,000 was entered. The plaintiff remitted the amount indicated, and the company appealed. Pending the appeal, Cost died, and the action has been revived here in the name of his administrator.
The errors assigned by the company for the reversal of the judgment are confined to the admissibility of testimony which the court permitted to go to the jury over its objection, and to the failure of the proof to sustain the verdict. The charge of the court to the jury has not been challenged, and it is not urged that there was a failure of proof except in this particular, viz.: that Cost and the other witnesses were not positive that the man whom they alleged was the cause of the injury was one of the company's employes. Upon his examination in chief the plaintiff testified that the man alluded to was a brakeman on the appellant's train, but on cross-examination he stated he did not know that to be a fact. He gave as the reason for his conclusion, however, that he saw the man on the platform at Cabot with a lantern deporting himself as an employe; and James Jenkins, his other witness, who rode from Cabot to Little Rock on the train, and corroborated Cost's statement of the accident, testified that the man acted as a brakeman on...
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