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

• Court: Supreme Court of Arkansas
• Citation: 101 S.W. 412,82 Ark. 289
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DOWGIALLO
• Decision Date: 08 April 1907

101 S.W. 412

82 Ark. 289

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

Supreme Court of Arkansas

April 8, 1907

Appeal from Sebastian Circuit Court; Styles T. Rowe, Judge; affirmed.

Judgment affirmed.

Oscar L. Miles, for appellant.

1. Instruction one for plaintiff is clearly erroneous, and the second is equally so. A railway company is not an insurer of the safety of its passengers. They are bound to the utmost care and diligence in the management of trains, and in the structure and care of tracks and subsidiary arrangements necessary to the safety of their passengers, but they are not required to exercise all the care, skill and diligence of which the human mind can conceive, nor such as will free passengers from all possible peril. Hutchinson on Carriers (2 Ed.), § 502; 57 Ark. 298; 60 Id. 550.

2. The brakeman was not acting within the scope of his authority when the assault was committed. Kirby's Digest, § 6633.

John H. Vaughan, for appellee.

1. There is no error in the instructions, 6 Ind.App. 203; 57 Ark. 98.

2. The brakeman was acting within the scope of his authority. The safety of passengers is entrusted to brakemen, conductors and engineers. 56 Maine, 202; 8 Bush (Ky.), 147; 9 Ill.App. 250. The following cases hold the company liable for unlawful acts of brakemen. 75 Ga. 51; 55 Ill. 185; 103 Id. 546; 81 Ind. 19; 44 Iowa 314; 45 Minn. 207; 30 S.W. 719.

OPINION

[82 Ark. 290] MCCULLOCH, J.

Appellee instituted this suit against the St. Louis, Iron Mountain & Southern Railway Company to recover damages alleged to have been sustained while a passenger on appellant's train. He alleged in his complaint that he was a passenger on appellant's train, that the train was in [101 S.W. 413] charge of a conductor and brakeman who were servants of appellant, and that said brakeman wrongfully, unlawfully and maliciously assaulted and beat him while he was on the train as a passenger, and also used abusive and profane language towards him.

The defendant answered this complaint, and denied, specifically, all the averments of the complaint, and, in addition thereto, set up that the contributory negligence of the plaintiff, by his own wrongful, wilful and unlawful conduct, brought about and caused whatever injury he may have received from any one upon said passenger train.

[82 Ark. 291] The case was tried before a jury, and the trial resulted in a verdict and judgment for the sum of $ 400 in favor of the plaintiff. The plaintiff testified, in substance, that while he was a passenger on defendant's train going from Ft. Smith to Jenny Lind, and while he was engaged in conversation with another passenger, Donahue, the brakeman on the train, came into the car and cursed him and beat him severely over the head with a lantern. He testified that he was not disorderly at the time, and gave the brakeman no provocation for the assault. Several other witnesses introduced by plaintiff testified to the same effect. Donahue and several other witnesses introduced by defendant testified that Donahue came into the car and got upon the arm of a seat to light a lamp when plaintiff addressed a vile epithet towards him, and he struck plaintiff over the head with the lantern in his hand.

There was a sharp conflict in the testimony as to which of the two--plaintiff or Donahue--was the aggressor and at fault in the encounter. According to the testimony of the plaintiff and his witnesses, the assault was unprovoked, and was wilfully and wrongfully committed. If Donahue and the other witnesses introduced by defendant are to be believed, plaintiff was entirely at fault in the beginning, and provoked the assault by the use of vile language toward Donahue. The jury settled this conflict in favor of the plaintiff.

The court gave the following instructions at the request of plaintiff, which the defendant objected to and now assigns as error:

"1. You are instructed that it is one of the prime duties resting on a railroad company to protect the passengers from assaults and injuries by its servants, and the question of its liability for a breach of this duty depends upon whether or not the servant acted within the course of his employment.

"2. You are instructed that it is the duty of a common carrier not only to carry its passengers safely, but to protect them from ill-treatment from its servants and other passengers. A common carrier is bound to use all such reasonable precautions as human judgment and foresight are capable of to make its passengers'...