St. Louis, Iron Mountain & Southern Railway Company v. Pell

• Decision Date: 14 December 1908
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PELL
• Court: Arkansas Supreme Court

115 S.W. 957

89 Ark. 87

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PELL

Supreme Court of Arkansas

December 14, 1908

Appeal from Franklin Circuit Court, Ozark District; Jeptha H. Evans Judge; affirmed.

STATEMENT BY THE COURT.

Harry Pell, a minor eighteen years of age, by his next friend Frederick Pell, brought this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries alleged to have been received by being forcibly ejected from a moving freight train by a brakeman in the employ of the railroad company. The evidence, as detailed by Harry Pell and his companion, was that they were stealing a ride on one of defendant's freight trains from Little Rock to Hot Springs, Arkansas. Pell and his companion, Miller Keplinger, were riding on the front bumper of a car. After they had ridden a few miles, a brakeman crawled down to where they were standing and asked them if they had anything. Pell replied, "No." The brakeman then asked Keplinger who had a pretty good hat, to trade hats with him. Keplinger refused. The brakeman then threatened to put them off at the next grade, and left them. After awhile he came back and said to them, "Are you going to trade hats?" Keplinger replied, "No." He then said, "You will have to unload." Pell told him that he was not going to get off. The brakeman then gave Pell a shove on his shoulder and kicked him off the train while it was in rapid motion. Keplinger had jumped off the car when the brakeman began to threaten them.

Wm. E Estes, the brakeman, admitted that he told the two boys that they would have to give him the hat if they wanted to ride, and that when they refused he told them they would have to get off or unload at the next hill. He denies that he shoved or kicked Pell off the train, and says that Pell alighted safely. He says that Pell was injured in trying to get back on the train.

On cross examination, Estes said that he knew it was against the rules of the company to let any one except the train crew ride on a train like the one in question, but that he would have let the boys ride if they had given him the hat. He further testified as follows: "I never turned a fellow down when he had the price or the goods to satisfy me. Of course, I never turned in anything to the company. I mean to say I would have violated the rules of the company and let a fellow ride whenever he showed up on the train with the fare to satisfy me. I have done so in the past."

Other witnesses testified that after the occurrence Harry Pell and Keplinger made a statement in their presence in which they said that they got off the train with the intention of getting back on, and that Pell was injured in trying to get back on the train. Pell and Keplinger denied making this statement.

The train in question consisted of forty-three freight cars and the caboose. The train crew comprised the conductor and three brakemen. The rear end brakeman rode on the cars next to the caboose. The swing brakeman rode on the cars in the middle of the train. The head brakeman rode on the cars next to the engine. Estes was the head brakeman. Pell and Keplinger were riding on the front bumper of a car three or four cars back from the engine.

Pell's foot was crushed by the cars when he fell, and he has suffered the loss of four of his toes.

There was a jury trial and a verdict for the plaintiff in the sum of $ 6,000. Defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

Lovick P. Miles, for appellant.

1. A verdict should have been directed for defendant as requested in instruction No. 1, because: [1] Appellee failed to introduce evidence legally sufficient to prove that the brakeman was acting within the scope of his employment, and [2] it affirmatively appeared that he was not so acting. 48 Ark. 177; 75 Id. 579. Appellant was a trespasser, the burden being on him to show that the brakeman was an employee of appellant and was acting for it within the scope of his employment. 42 Ark. 542; 67 Id. 47; 75 Id. 579; 58 Id. 381.

2. The judgment should be reversed on account of improper and prejudicial conduct and argument of counsel. 71 Ark. 427; 75 Ala. 466; 70 Ark. 205; Ib. 179; 61 Id. 137; 65 Id. 626; 77 Id. 12; 74 Id. 256; 81 Id. 87.

3. It was error to refuse to permit the further cross-examination of witness Keplinger.

4. The verdict was excessive, reflecting passion, prejudice or sympathy.

James & Fuller and W. W. Cotton, for appellee.

1. Instruction No. 1 was properly refused. 48 Ark. 177; 64 N.Y. 129; 75 Ark. 585. The master, having placed the servant in a position to act for him and having put into motion the agency for providing the mischief, is bound to prevent mischievous consequences. 42 Ark. 525; 109 Mass. 154; 66 Ill. 238; 67 Ark. 47. The matter was properly submitted to the jury. Cases supra.

2. The argument of counsel was not improper nor prejudicial. No proper exceptions were saved. Kirby's Digest, § § 6221-6227; 75 Ark. 256; 70 Id. 305; 58 Id. 353.

3. Reversible error is not predicated on the termination of a cross-examination by the court unless there is some abuse of sound judicial discretion shown. 86 Ark. 104; 83 Ark. 258; 80 Id. 201.

4. The verdict is not excessive, but is amply sustained by the evidence. 75 Ark. 587.

HART, J. HILL, C. J. and BATTLE, J., dissent.

OPINION

HART, J. [after stating the facts.]

At the conclusion of the testimony counsel for appellant asked the court to direct the jury to return a verdict in its favor, and insists that there was reversible error in refusing his request.

In the case of St. Louis, Iron Mountain & Southern Railway Company v. Grant, 75 Ark. 579, 88 S.W. 580, it was held that "an assault committed by an employee of a railroad company in the course of his employment, for the purpose of advancing its interests, and in pursuance of his real or apparent agency, is an act done within the scope of his employment, for which the railroad company will be liable, although it neither authorized nor ratified the act."

In the case of St. Louis, I. M. & S. Ry. Co. v. Hendricks, 48 Ark. 177, 2 S.W. 783, it was held: "Whether a particular act of a servant was or was not in the line of his duty is a question for the jury to determine from the surrounding facts and circumstances, and evidence that it was the custom of the master's servants to perform such act is admissible to prove it."

In the Hendricks case, the brakeman demanded payment of fare of one Cost, a trespasser on the train. Cost had no money, and the brakeman ordered him off the train. His manner was so threatening that Cost started down the ladder of the freight car upon which he was riding, when the brakeman kicked at him and stamped upon the back of his hands, and thus caused him to loose his hold on the rungs of the ladder. COCKRILL, C. J., who delivered the opinion of the court, said:

"The fact that brakemen commonly performed the duty of ejecting such persons [trespassers] from the appellant's freight trains afforded a reasonable presumption or inference that the brakeman who ejected the plaintiff acted in the line of his duty, if the jury chose to believe that he was ejected by a brakeman for the non-payment of his fare."

Counsel for appellant insists that there is no evidence from which it can be inferred that the brakeman was acting in the line of his duty, when he ejected Pell, if he did eject him, and that the testimony only goes to the extent of showing that it was against the rules of the company for any person other than the train crew to ride upon a train like the one in question, and that the brakeman knew of the existence of this rule.

Estes, the brakeman who is alleged to have ejected Pell, said: "I knew it was against the rules of the company to let anybody but the train crew ride on a train like this one, but I would have let those fellows ride if they had given me this hat." Again he says: "I mean to say I would have violated the rules of the company and let a fellow ride whenever he showed up on the train with the fare to satisfy me. I have done so in the past."

It is admitted that it was against the rules of the company for persons other than the train crew to ride on trains like the one in question. The train consisted of forty-three freight cars and the caboose.

The conductor rode in the caboose. Obviously, it was some one's duty to enforce the rules of the company. It was impractical for the conductor to ride on the rear end of a train of forty-four cars, and alone to enforce the rule. It was the duty of the brakeman to ride upon that portion of the train assigned to them by the conductor. Estes was placed upon the front end of the train. If it was not a part of his duty to assist in enforcing the rule, he would not have violated it, as he testified he had done in the past by letting trespassers ride, and as he would have done in this case by permitting Pell and Keplinger to ride. These are reasonable inferences the jury might have drawn from Estes' testimony in connection with the surrounding circumstances, and which evidently they did draw as shown by their verdict.

Counsel for appellant has argued his position with much force, but, after due consideration, we think the evidence sufficient to sustain the verdict.

In the closing argument of the case, counsel for plaintiff stated to the jury: "The plaintiff is interested, because he will get something out of this case if he wins. Estes is interested because his job depends on his testimony." Counsel for defendant said to the court: "I object to the statement of counsel for plaintiff that Estes is interested because his job depends upon his testimony." The court said: "Counsel is arguing that to the jury." Counsel f...