St. Louis, I.M. & S.R. Co. v. Hendricks

• Decision Date: 15 January 1887
• Citation: 2 S.W. 783,48 Ark. 177
• Parties: ST. L., I. M. & S. RY. v. HENDRICKS, ADM'R
• Court: Arkansas Supreme Court

2 S.W. 783

48 Ark. 177

ST. L., I. M. & S. RY. v. HENDRICKS, ADM'R

Supreme Court of Arkansas

January 15, 1887

APPEAL from Lonoke Circuit Court, Hon. F. T. VAUGHAN, Judge.

Judgment affirmed.

Dodge & Johnson, for appellant.

The testimony of Drs. Martin and Corn to show a custom at Austin that defendants employes put tramps off the train, was clearly incompetent and calculated to prejudice the jury. See 42 Pa. St., 163; 16 C. B., N. S., 659; 86 N.Y. 309; 12 N.Y 529; 5 Hem., 529; 74 Mass. 548; Wharton on Ev., sec. 40; 1 Greenlf. on Ev., sec. 52; ib., sec. 448; 115 Mass. 240; 118 ib., 422; 10 Allen, 148; 6 Cush., 398.

The admission of material, incompetent evidence, under objection is ground for a new trial. 89 Mass. 508; 38 ib., 145; 74 ib., 512.

In torts the proof must be confined to the immediate locality of the accident. 4 Md. 242; 70 Mo. 243; 68 ib., 470; 38 Mich. 537; 45 N.Y. 574; 60 Mo. 227; ib., 265.

Evidence of other acts are not admissible; such evidence is incompetent. 8 Oregon, 172; 52 Barb., 267; 41 Conn. 61; 59 Iowa 581; 69 Me. 173; 60 N.Y. 278; 44 ib., 465.

2. The verdict was not sustained by the law and the evidence. There was no proof that any of the defendant's brakemen were guilty of the offense charged.

3. The verdict is excessive, and the remittitur failed to cure it.

Sam W. Williams, Sol. F. Clark and T. E. Hendricks, for appellee.

The testimony of Drs. Corn and Martin was competent to show that brakemen were acting within the line of their duty in ejecting tramps and persons attempting to ride without paying fare, and that it was their custom to do so. Greenl. Ev., secs, 44 to 48; Burrell on Cir. Ev., 26 et seq.; Starkie Ev., vol. 2, marg. p. 41; 42 Ark. 542.

Railroads are liable for forcibly ejecting trespassers from their trains, and it is not necessary to show that the master especially authorized the particular act. It is sufficient to show that the servant was engaged at the time in doing the master's business, and was acting within the general scope of his authority, and this, although he departed from the private instructions of the master, abused his authority, was reckless in the performance of his duty, and inflicted unnecessary injury. 64 N.Y. 129; Cohen v. Dry Dock Co., 69 ib., 170; 2 Reporter, 837, S. C., 55 Iowa 496; 14 How., U.S., 468; 2 Cent. Rep., 33; 3 Cent. Rep., 404.

OPINION

COCKRILL, C. J.

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 seventeen years of age; the jury accepted his version of the matter, and returned a verdict for $ 5000 in his favor. The circuit judge directed that a new trial should be granted unless a remittitur of $ 2000 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.

1. RAILROAD: Employe: Evidence.

The errors assigned by the company for the revarsal 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 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 belief, 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 the train between these points.

If the jury credited the testimony, that the man was for such a length of time aiding the company in operating its train, it was sufficient to justify the conclusion that he was a regular employe. Indeed, it would be difficult, in the most of these cases, to prove the relation of master and servant except by the fact that the one is known to perform service for the other, or from their course of dealing. 2 Starkie Ev. marg. p. 41- 3.

2. SAME: Whether act of servant was within his duty. Evidence.

The court instructed the jury that the master could not be held to respond in damages for an injury resulting from the wanton and wilful act of a servant, unless the act was done in the discharge of his duty, or while...