St. Louis, Iron Mountain & Southern Railway Co. v. Robertson

Decision Date08 April 1912
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. ROBERTSON
CourtArkansas Supreme Court

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

STATEMENT BY THE COURT.

The plaintiff alleged that on the 12th day of September, 1908 plaintiff's intestate, Clint Ruff, boarded one of defendant's local freight trains at Walnut Lake Arkansas, and became a passenger thereon, intending to go to Dumas, Arkansas, another station on defendant's railroad that a short distance from Walnut Lake, while the train was upon a high trestle over a body of water, defendant's conductor in charge of the train wilfully and maliciously negligently and carelessly, without any cause whatever brutally assaulted Ruff and knocked him from the train into the water, where, after lingering for some time in great mental anguish and bodily suffering, he died. Plaintiff asked for damages in the sum of $ 5,000 by reason of the pain and suffering of Ruff and $ 10,000 as exemplary damages for the wilful and malicious killing of Ruff.

The answer denied all the material allegations in the complaint, and set up that Ruff undertook to board one of defendant's through freight trains, which he well knew did not carry passengers, and, on being informed of this fact, that he wilfully, maliciously and murderously attacked the conductor with a pistol, and the conductor undertook to disarm him, and while Ruff was resisting the conductor and undertaking to take his life in the fight which ensued he fell from the train into the body of water where he was drowned. The answer alleged that Ruff came to his death by reason of his own wrongful acts, and pleaded contributory negligence. Defendant also set up that Ruff was a trespasser, that no contract relation existed between him and the defendant, and pleaded two years' statute of limitations. It also set up that Ruff was injured by an assault committed upon him by the conductor, and pleaded the one year statute of limitations.

The evidence on behalf of the appellee tended to show that Clint Ruff, at the time of his death, was about twenty years old. He weighed about 130 pounds. He boarded appellant's freight train at Walnut Lake, intending to go to Dumas, another station on appellant's railroad. The depot at Walnut Lake is about 150 yards from the lake. The train was a through freight train, and did not carry passengers. A local freight train and a through freight train are just alike as to their make-up.

One witness testified, over the objection of appellant, that he could not tell the difference between a local and a through freight.

A physician was introduced, and testified that he knew Clint Ruff, and was at Walnut Lake the night he was killed; that he was drowned. He said that a man falling in the water would possibly be conscious for two or three minutes; that his medical education did not teach him how long a man would be conscious, but he knew that fact as any ordinary citizen.

A witness testified that Ruff wanted to ride, and the conductor told him he could not. He insisted on going any way. The conductor told him to get off the train before it got to moving too fast. The conductor seemed to be mad. They were both talking loud. The conductor told Ruff that he never carried passengers, and would not let him ride. Ruff was trying to persuade him to let him go; he said he was going to go any way. The conductor told him "No," and Ruff reached for a gun. The caboose was not over the water at the time the conductor told Ruff to get off. Ruff could have got off with perfect safety at the rate the train was going. After Ruff was off, the conductor said, "I reckon that will learn him a lesson." The witness said that he heard Ruff tell the conductor to take his hands off of him, calling the conductor a "damned son-of-a-bitch." The witness saw no gun until after it was over, when the conductor had a gun, and said it belonged to Ruff. The caboose was right over the water when the conductor shoved the boy off.

Another witness testified that he saw Clint Ruff when he first got on right behind the conductor. He got up in the caboose, and was standing about two feet from the door, inside the car. The conductor asked him what he was doing, and where he was going. Witness did not hear Ruff make any reply. The conductor told him to get off the train. This was while the train was moving. The conductor said: "Are you going to wait until we stop?" Ruff said nothing. The conductor said: "Get off, or I will throw you off," and Ruff never said anything, but he went into his pockets, and the conductor grabbed the gun, when the witness ran. The conductor put the gun in his own pocket, and witness "heard the body hit the water." The witness stated that the train was running about ten miles an hour when the conductor first told Ruff to get off. The conductor grabbed Ruff's hand just as he was pulling the gun out of his pocket.

One of the witnesses on behalf of appellant testified substantially as follows: He was a brakeman, and was on the caboose the night Clint Ruff was drowned. Ruff came inside the door of the caboose as the train was leaving town. The conductor asked him where he was going, and he said to Dumas. The conductor told him he couldn't go, and told him to get off. Ruff made no attempt to obey. The conductor said: "You will have to get off; I can't carry you." Then they got into a dispute and clinched, and when they clinched they began cursing. He heard Ruff use some words. They were cursing. He heard no threats except the conductor say: "Don't get your gun on me." The train was running very slow on that bridge not more than seven miles an hour.

It was shown that Ruff had on no coat; that he was in his shirt sleeves. The conductor weighed about 220 pounds.

Other facts will be stated in the opinion.

Judgment affirmed.

W. E. Hemingway, E. B. Kinsworthy, W. V. Tompkins and James H. Stevenson, for appellant.

1. The action is ex delicto, and barred by the one year statute of limitations. Kirby's Dig., § 5065; 83 Ark. 6; 63 Ark. 568.

2. The death of deceased could not have been accompanied by pain and suffering. Appellee can therefore recover nothing more than nominal damages, if he can recover at all. 68 Ark. 1; Kirby's Dig., § 6285; 54 Ark. 358-360; 68 Ark. 1-3; Tiffany, Death by Wrongful Act, § 74; 9 Cush. 108; 69 Miss. 425.

3. If appellee had the right to maintain this suit, there is no evidence of conscious suffering, and the verdict should have been for nominal damages only. 43 L. R. A. 568; 145 Mass. 281; 56 F. 248; 125 Mass. 90; 145 U.S. 348.

4. The court's first instruction is erroneous, because there was no evidence on which to base it, nor evidence that the conductor sought to eject deceased at a dangerous place; because, if deceased provoked the difficulty, he had no right to defend himself by drawing a pistol until he had attempted to withdraw from the difficulty, and in assuming that his resistance was lawful. It is further erroneous in that under it punitive damages were recoverable, whereas, under the evidence, only nominal damages could be recovered. 37 N.W. 116; 68 Me. 279; 70 Ill. 242; 71 Ill. 242; 30 Mich. 493; 50 Wis. 645.

M. Danaher and Palmer Danaher, for appellee.

1. The action is not barred. 83 Ark. 6; 71 Ark. 71; Kirby's Dig., § 6285; 59 Ark. 215; 41 Ark. 295.

2. Death was not instantaneous. There is proof tending to show that deceased was conscious two or three minutes while drowning, evidence from which a legitimate inference could be drawn not only that death was not instantaneous but that it was accompanied by both physical and mental pain and suffering. 64 N.H. 471; 84 Ark. 241; 59 Ark. 215.

3. The verdict is not excessive. 68 Ark. 1; 59 Ark. 215; 84 Ark. 241.

4. The court's first instruction correctly declares the law. 32 Ia. 534; 42 Pa.St. 365; 12 Allen 580; 80 Am. Dec. 286; 64 N.Y. 138; 26 Ind. 476; 4 Hun 684; 60 Ark. 613; 80 Ark. 345.

OPINION

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

Appellant contends that the action is barred under section 5065 of Kirby's Digest, which provides: "All actions for criminal assaults and battery and false imprisonment shall be commenced within one year after the cause of action shall accrue, and not after."

Clint Ruff was killed on the 12th of September, 1908, and the suit was instituted on June 1, 1911. The complaint alleged that Ruff was a passenger, and that his death was caused by the wilful, malicious and negligent conduct of appellant's servant in assaulting Ruff and knocking him from the train into the water, "where, after lingering for some time in great mental anguish and bodily suffering, he died."

At the common law such an action, if proved, would have been an action on the case. A wrongful act committed by a defendant's servant in the line of his duty, although without the order or consent of his principal, would render the latter liable, and at common law constituted an action on the case. St. Louis, I. M. & S. Ry. Co. v. Mynott, 83 Ark. 6, 102 S.W. 380.

This court held in Emrich v. Little Rock Traction & Elec. Co., 71 Ark. 71, 70 S.W. 1035, that the limitation of three years applies to all actions on the case except for criminal conversation and for assault and battery and false imprisonment.

Such actions as the one alleged in appellee's complaint may be brought "in the same manner and with like effect in all respects as actions founded on contract." Kirby's Digest, § 6285. It is not an action for assault and battery under section 5065 of Kirby's Digest, but rather an action brought by the administrator of Clint Ruff for the benefit of his estate under section 6285 of Kirby's Digest. Texarkana Gas & Electric Co. v Orr, 59 Ark. 215, 27 S.W. 66. See also Ward...

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