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

• Decision Date: 26 October 1908
• Citation: 113 S.W. 204
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. LAVENDUSKY.
• Court: Arkansas Supreme Court

113 S.W. 204

ST. LOUIS, I. M. & S. RY. CO. v. LAVENDUSKY.

Supreme Court of Arkansas.

October 26, 1908.

Appeal from Circuit Court, Franklin County; Jeptha H. Evans, Judge.

Personal injury action by Stanley Lavendusky, by his next friend, Antony Lavendusky, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.

Walter Lavendusky, a lad about nine years old, was walking by the side of appellant's railroad track in its yards at the town of Denning, Ark. While Lavendusky was thus walking, the yard master of appellant threw from one of its freight cars as it passed along the track a large lump of coal, which struck the lad upon his head, severely injuring him. An eyewitness testified that the yard master was looking down towards young Lavendusky when he threw the coal off. It was shown that the switch or yard crew of appellant threw coal off its cars near where one Kelly lived "pretty often," and that this had been done for a year or two. The witness explained that the crew would throw the coal off "sometimes every day, and then again they would check up, and not throw off any for a few days, and then they would go to throwing it off again." It was shown that after the cars were loaded with coal they were taken down into appellant's yard. The cars were under the supervision of appellant's yard master. The coal on the cars did not belong to the yard master, but to the parties to whom it was billed. Neither the yard master, nor any switchman, nor any one connected with the yard service, had any authority to throw coal from the cars. When this was done, it was in direct violation of the rules of the company. It was not done for the benefit of appellant. When Lavendusky was injured, he was in a path along the railroad "where all the people passed." He was about 10 or 15 yards from the public road. These are the undisputed facts, upon which appellee recovered a judgment against appellant for $2,500, which this appeal seeks to reverse.

Lovick P. Miles, for appellant.

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

It was beyond the scope of the employment of the yard master to throw coal from appellant's car in the manner shown by the evidence. Appellant had not invested him with such authority, either real or apparent. The act was not for the benefit of appellant, and was a tort, for which appellant was not liable. St. L., I. M. & S. Ry. Co. v. Grant, 75 Ark....