St. Louis & San Francisco Railroad Co. v. Kilpatrick

• Decision Date: 28 October 1899
• Citation: 54 S.W. 971,67 Ark. 47
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. KILPATRICK
• Court: Arkansas Supreme Court

54 S.W. 971

67 Ark. 47

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. KILPATRICK

Supreme Court of Arkansas

October 28, 1899

Appeal from Franklin Circuit Court, JEPTHA H. EVANS, Judge.

Judgment affirmed.

L. F Parker and B. R. Davidson, for appellant.

Appellee was not a passenger, and had not the rights of one. A railroad company may make reasonable rules and regulations to govern the receiving of its passengers, and the passengers are bound to take notice of and obey such rules. 4 Ell. Rys §§ 1576, 1579, 1580, 1581, 1603; 132 Mass. 116. At least, until a party who enters in violation of the rules is accepted by the carrier as a passenger, he is not such. 139 Mass. 238; 19 Ore. 354; 15 Gray, 20; 59 Ark. 395-404. The burden was on appellee to show that he was ejected by an employee acting within the scope of his authority. 37 Kan 212; 60 Mo. 413, 419; 72 Mo. 62; 82 Tex. 516. A brakeman has no such implied authority. 27 S.W. 118; 56 F. 1014; 59 Ia. 428; 69 Miss. 723; 86 Pa.St. 418; 20 Ala. 268; 48 Ark. 177; 56 N.Y. 489. And the company is not liable for his unauthorized act. 124 Ind. 394; 19 Oh. St. 110; 19 Pa.St. 256; 5 Wheat. 326; 32 N.J.L. 328-331; 26 Ind. 70-75. It was an abuse of discretion to refuse the adjournment asked by appellant, in order to give his witnesses time to arrive. 52 Miss. 23, 34; 10 Ark. 527; 21 Ark. 460; 60 Ark. 564; 79 Cal. 477; 34 Kas. 312. Likewise, it was an abuse of discretion to make the granting or such adjournment conditional on defendant's payment of the jury's fees for one day. 23 Ark. 722; 7 N.Y.S. 90; 9 Wash. 222; 5 N.J.L. 539; Cf. 13 R. I. 364; Const. Ark. art. 2, § 13; Black, Con. Law, 443. It was error to admit secondary evidence of the contents of the placard on defendant's cars. 1 Phil, Evid. p. 595; ch. 9, § 4; 2 id. pp. 518-525, ch. 7; 1 Greenl. Ev. §§ 82, 84, 88-94; Best, Ev. §§ 30, 87, 89, 215, 215 n; 37 Pa.St. 228; 16 How. 14-26; 10 Kas. 184, 188; 50 Kas. 436; 88 Ala. 182; Bradner, Ev. pp. 333, 249, 246; 1 Rice, Ev. pp. 155, 157, 158, 159, 166. The only permissible secondary evidence would have been an examined copy. 1 Phil. Ev. p. 263; 87 Cal. 209. The motion for a new trial on account of surprise and misconduct should have been granted.

Chew & Fitzhugh and C. B. Moore, for appellee.

The finding of the jury on conflicting evidence will not be disturbed on appeal. 19 Ark. 684; 23 Ark. 209; 23 Ark. 32; 46 Ark. 524; 47 Ark. 196; 50 Ark. 511. It was not error to refuse a postponement in order that the defendant might procure evidence which was merely cumulative. 46 Ark. 182; 60 Ark. 481; 52 Ark. 120. The supplemental bill of exceptions can not be considered, because not attested by distinterested bystanders. 3 Am. & Eng. Enc. Pl. & Pr.; 14 S.W. 946. The contents of the placard were only collateral to the issue, and hence were provable by parol. 1 Greenl. Ev. § 85; 19 Ill. 510; 28 Ga. 111; 49 S.W. 975; 1 Rice, Ev. 420; 11 Ex. 133; 39 Am. Dec. 39; 99 Mass. 542; 124 Mass. 318; 11 St. Rep. 737; Whart. Cr. Ev. 163-8; 39 S.W. 203. Appellant waived all objection on this point by first entering into proof of the matter. Thomps. Trials, 706-7; 29 N.W. 661. The exceptions should have been specific. 58 Ark. 373; 29 Ark. 17; 15 Ark. 345; ib. 415; 48 Ark. 177. Appellant was responsible for the act of the brakeman. 2 Wood, Rys. 1045; 42 Ark. 542; 58 Ark. 381; 48 Ark. 177; 64 N.Y. 129; 112 Pa.St. 551; 36 Kas. 655; 117 N.Y. 505; 72 Ga. 292; 29 Ill.App. 90; 95 Ky. 72; 38 Ind. 116; 14 How. 468; 110 Ind. 156; 40 How. Pr. 456; 4 Am. & Eng. Ry. Cas. 537. Newly discovered evidence, to entitle a party to a new trial, must be such as could not have been procured at the trial by the exercise of reasonable diligence, it must go to the merits of the cause, it must not be merely for the purpose of impeaching a witness, and it must not be merely cumulative. 17 Ark. 404; 26 Ark. 496; 2 Ark. 144; 25 Ark. 387-8; 40 Ark. 447; 38 Ark. 506-9; 60 Ark. 485; 28 Ark. 124. It was not error to refuse a new trial. 25 Ark. 312; 38 Ark. 516; 55 Ark. 312.

OPINION

WOOD, J.

The complaint alleged, in substance, that Geo. Kilpatrick boarded appellant's train at Van Buren, intending to go to Chester as a passenger, but that appellant negligently willfully and maliciously ejected him, whereby his foot was caught under the cars, and so badly crushed as to necessitate amputation. The answer denied all material allegations, and set up contributory negligence.

The substantive facts, as testified to by appellee, are: That he went to appellant's station at Van Buren for the purpose of taking its passenger train to Chester. The fare from Van Buren to Chester was 75 cents, and appellee had the money to pay his fare. Appellee got upon the depot platform, even with the front end of the smoking car, and got on the front end of the smoking car. He did not enter the coach, for the reason that he desired to see two companions who had gone up the track a short distance, to "wave" at him as he passed by. He went and was standing upon the rear end of the second car from the engine. He went to the depot, and just as he was stepping upon the platform the train was ringing the bell and getting ready to pull out. He noticed a man standing down at the rear end of the smoking car--the third car from the engine,--who had a lantern in his hand, and who was helping passengers on and off. Appellee did not go to the end of the car where the brakeman was, because he did not have time. He did not get on until after the cars had started. The brakeman did not get on until after appellee had got on. The man appellee had seen standing at the rear end of the car came on through the car to where appellee was standing on the platform, and appellee saw the word "Brakeman" on his cap. He asked appellee where he got on, and appellee told him, "At Van Buren." He then asked appellee where he was going, and appellee replied, "To Chester." He then asked appellee if he had a ticket, and appellee told him he did not have time to get a ticket. The brakeman told appellee to get off, and appellee replied that "the train was running too fast; besides, he had the money to pay his fare to Chester." And the brakeman said, it "did not make a damn bit of difference; that he [appellee] would have to get off," and the brakeman put his hands upon appellee's shoulders, and gave him "a pretty hard shove down the steps," and as appellee was falling he grabbed the iron at the end of the car, and it threw him to one side, and the train ran over his foot, crushing it all to pieces, so that it had to be amputated. Appellee was thrown off at the road crossing about two hundred and fifty yards from the depot platform.

The testimony of appellee as to his having money to pay his fare and as to the time, place, and circumstances of his getting on the cars, is corroborated by several witnesses. There was much evidence on behalf of appellant contradictory of all this.

It was shown that the train which injured appellee consisted of two sleepers, a chair car, a coach, a combination car, and baggage car. A part of the train was vestibuled. The vestibule requires the door to be opened to enter, that is, passengers passed through a door on the steps of the car before getting on the platform. The sleepers, the chair car, and between the chair car and smoking car are vestibuled. Between the combination car and smoking car it is vestibuled on the coach end. The. platform of the combination car was open. It was the duty of the brakeman to station himself at the steps of the car, and prevent people from entering the cars who did not have tickets.

A placard fastened to the handles of the platform on the rear end of the coach read: "Trainmen must examine tickets before allowing passengers to enter the cars." This was one of the rules of the company. A man on the platform would not be considered within the cars. It was further shown that, if a passenger applied to enter the train without a ticket, same would be held to enable him to purchase one.

The verdict was for $ 12,000. A remittitur was entered for $ 7,000, and a judgment was rendered for $ 5,000. Appellant insists upon a reversal of this judgment for the following reasons, which we will consider in the order presented by its counsel.

1. Because the plaintiff was not a passenger. The court, inter alia, instructed the jury as follows: "Unless it appears from the preponderance of the evidence that plaintiff at the passenger station got upon defendant's passenger train, able and intending to pay for being carried as a passenger thereon, and that a brakeman on said train, acting within the scope of his authority, willfully, maliciously and wantonly, knowing the danger to plaintiff of such act, pushed plaintiff from said train while it was in such rapid motion as to endanger plaintiff's safety, and thereby caused plaintiff the injuries mentioned in the complaint, he cannot recover.

"If the plaintiff was stealing a ride on defendant's train, and was pushed off in any manner by a brakeman on defendant's train, plaintiff cannot recover, and you must find for the defendant."

Under these instructions the jury must have found that appellee was a passenger, and that he was "wilfully, maliciously, and wantonly expelled." Appellant contends that appellee was not a passenger, even if the facts be taken as stated by him because they show "that he had not purchased a ticket, that he did not go upon the car at the proper place, and that he remained on the platform of a coach in which he would not have been permitted to ride, and made no effort to enter the train until after it had run six hundred feet." We are of the opinion, conceding the facts to be as appellee states them, and as the jury might have found, that appellee was a passenger. In other...