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

• Decision Date: 10 June 1905
• Citation: 88 S.W. 580
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. GRANT.<SMALL><SUP>*</SUP></SMALL>
• Court: Arkansas Supreme Court

88 S.W. 580

ST. LOUIS, I. M. & S. RY. CO. v. GRANT.^*

Supreme Court of Arkansas.

June 10, 1905.

Appeal from Circuit Court, Pulaski County; Edw. W. Winfield, Judge.

Action by one Grant against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The appellee, Grant, brought suit in Pulaski circuit court against the appellant railway company for personal injuries received from an assault and battery of one C. W. Burke, a "special agent" or detective of the appellant railway company. He sued for both compensatory and exemplary damages. The jury found against the plaintiff as to exemplary damages, and found in his favor as to compensatory damages, which were assessed at the sum of $7,000, and judgment was entered therefor. The defendant railway company, properly preserving its exceptions, brought the case here. Grant was a young man employed in the freight department of the Choctaw, Oklahoma & Gulf Railroad Company (hereafter referred to as the "Choctaw Road"), and he was directed by his employer to go to the switches where freight cars were standing, and take the numbers of the various cars and gather data therefrom for the use of his employer. He was instructed not to go on the appellant's tracks or right of way in performing this work. While he was standing in a public street of the city of Little Rock in the performance of this work of taking numbers of Iron Mountain freight cars on a switch in said street, he was set upon by said Burke. Burke attacked him without warning, and beat him viciously. The result of this beating was the permanent loss of 90 per cent. of the vision in one eye, the permanent drooping of one eyelid, and suffering from the date of the injury to the time he testified in the trial, in addition to expenses, loss of time, etc. The appellant offered no evidence on the trial, and the substance of the appellee's testimony was: Bossinger, the local freight agent of the Iron Mountain Railway at Little Rock, learned of Grant's taking the car numbers, and notified A. R. Bragg, the division freight agent, by letter and verbally, of these facts, and he told the commercial agent of the Choctaw Railroad and the local freight agent of said road that if they did not stop this boy from taking these numbers that he (the boy) would get hurt. Bragg was the head of the freight department of the road at Little Rock and in the division of which Little Rock was the headquarters. When he received this information from Bossinger, he wrote to the general superintendent at St. Louis in regard to it, and had some correspondence with him about it and probably other officers. He wrote the following letters to Mr. Morrison, the general freight agent of the Choctaw Road:

"Personal. Little Rock, Ark. Sept. 30, 1902. Mr. H. W. Morrison, G. F. A. C. O. & G. R. R. Little Rock, Ark.—Dear Sir: For several months it has been called to my attention, at different times, that a man in the employ of your company, either in your office or the office of your commercial agent here, makes a practice of going over our team and private tracks daily taking numbers and initials, etc. In two or three instances merchants have complained to me that your representative has been to them calling their attention to such cars received via the Iron Mt. wanting to know why such cars were not shipped via the Choctaw. The name of the party who is taking the numbers is Grant. He was found taking numbers of our cars on the Penzel Grocery Company's track on last Saturday. All I desire to say is that I consider this a contemptible piece of business, and a method that no fair competitor would take to gain information, and we propose to treat this man as a trespasser. [Signed] Yours truly A. R. Bragg. ARB."

"Personal. Little Rock, Ark. Oct. 6, 1902. Mr. H. W. Morrison, G. F. A., C. O. & G. Ry., City.—Dear Sir: Replying to your personal letter of Oct. 5th in answer to my letter of Sept. 30th.: I desire to say that is entirely with you whether you answer communications from this office or not. In the second place, I deny positively that anyone connected with this company in Little Rock ever resorted to the practice to which your company have resorted to get information, and the statement made in the second paragraph of your letter is without foundation. I desire further to add that, hereafter, if the party in your employ is found in our yards taking car numbers and getting other information, as charged in my communication of September 30th, he will be treated as a trespasser. [Signed] Yours truly, A. R. Bragg, D. F. A."

Daniel Webster was a young man employed as "utility man" in Bossinger's office, and he was acquainted with Grant, and Bossinger was not. Burke came to Bossinger's office, according to Bossinger's testimony, asked if they were having any trouble with the Choctaw representative, and was told they had, and Burke said he wanted to have some one identify the party, and Bossinger—so Webster says, and Bossinger practically admits— delegated Webster to go with Burke to identify the party. Webster went with him three different times before they found him; the first time about a month before the other trips; and finally found him as heretofore stated, and Webster pointed him out to Burke, with the result that Burke immediately assaulted him. A short time before the assault Webster stated to W. H. Davis, a witness, that they were looking for Grant (referring to himself and the detective), and the witness asked what the detective was doing looking for Grant, and Webster told him that Grant was checking up their cars, and the witness asked what they were going to do if they caught him, and he said they were going to beat him. Burke was not present, but in sight, when this conversation was had. When Burke attacked him, he told him he had been warned before not to do this work, and during the attack on Grant Burke secured his memorandum book, with the car numbers, and just after the attack remarked, in hearing of a bystander, "We will just take this up, and show it to them." Webster testified that one after the assault he saw Burke come into Bossinger's office, get some money, and walk out. Bossinger says he was not in his office after the assault. Bragg says that Burke came to his office before the assault on Grant, which was November 25, 1902, and he had a conversation once or twice with him before the assault. Burke asked him, so he says, if he knew who was taking the car numbers, and he said he knew it was being done, but did not know who was doing it. He denied all further knowledge of the affair than as stated. He said that he was (at the time under inquiry) a general agent in Arkansas of the company for freight business,...