St. Louis & San Francisco Railway Co. v. Brown
Decision Date | 11 April 1896 |
Citation | 35 S.W. 225,62 Ark. 254 |
Parties | ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. BROWN |
Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District, EDGAR E BRYANT, Judge.
Judgment affirmed.
L. F Parker and B. R. Davidson, for appellant.
1. The plea to the jurisdiction should have been sustained. It is against public policy to allow such suits to be maintained at a point so far from where the acts are alleged to have occurred, and between residents of other jurisdictions. 2 N.Y.S. 524; Black, Const. Law, p. 222; 127 U.S. 706; 14 S.W 228; 98 Mass. 65. It is the settled policy of our law and of Missouri that suits shall be brought where the defendants reside. Mansf. Dig., secs. 5007-9, 4029, 5003; 38 Ark. 205; Dig. Stat. Mo., vol. 2, p. 1454, secs. 6126, 2009; 80 Mo. 634; 55 Ark. 282.
2. It was error to allow Humphreys' opinion in evidence. He was not an expert. 61 Wis. 357; 19 Am. & Eng. Ry. Cases, 74, 79; 58 F. 947-8.
3. There was no cause of action, under the Missouri statute, for ejecting at a wrong place. 64 Mo. 465; 77 id. 663; 53 id. 320; 50 F. 496-501; 127 U.S. 390. The plea in abatement should have been sustained. 2 N.Y.S. 524; 14 S.W. 228; 19 Mich. 305-315; 8 Bissell, 31.
4. It was error to admit statements of the conductor as part of the res gestae 11 Am. & Eng. Ry. Cases, 85-89.
5. Evidence that plaintiff had rheumatism before and after the occurrence was not admissible. 56 F. 994.
Rogers & Oglesby, for appellee.
1. Where a right accrues by virtue of a statute of any state, the action may be maintained in any other state, if not contrary to public policy of the place where brought, such actions being transitory. 31 Minn. 11; 103 U.S. 11; 65 Ia. 729; 60 Miss. 977; 63 Ia. 70; 8 Baxt. (Tenn.), 341; 19 Mich. 305; 51 Ark. 459; 84 N.Y. 48; 145 U.S. 593; 17 Wend. 323; 20 S.W. 819.
2. The testimony of Humphreys was competent. Questions of time, distance, etc., are matters of common knowledge. 41 Vt. 99. And what the conductor said was admissible as part of the res gestae, and to show his temper and frame of mind. 20 Ark. 225. The testimony as to plaintiff's rheumatism was not admitted, but excluded.
3. This is a case of conflict of testimony, and the jury believed the plaintiff's theory to be true. This court will not disturb the finding. 46 Ark. 149; 51 id. 476; ib. 475; 147 U.S. 150; 23 U. S. App. 349.
This suit was instituted in the Sebastian circuit court, Fort Smith district, and, having progressed to a certain point, plaintiff, Drura Brown, suffered judgment of nonsuit, and subsequently renewed the suit against the defendant company, which resulted in judgment in her favor in the sum of three hundred and seventy-five dollars, and the defendant company appealed to this court.
The plaintiff, Drura Brown, and her husband, referred to in the record as Dr. Brown, resided at Vinita, in the Indian Territory, and only a short distance from the city of Fort Smith; and on 22d December, 1892, each purchased at Fort Smith, from defendant's agent, a round-trip ticket over its railroad and connecting lines to and from Memphis, Tennessee. This ticket was conditional to the extent that it was stipulated thereon that the holder thereof, in order to make the return part good, should identify herself or himself, as the case might be, by signing her or his name, and having the ticket stamped by the agent of the company, at a point named between the punch marks thereon made.
Plaintiff and her husband were on their return, and, by the connecting railway, reached defendant's road at Nichols, in Green county, in the state of Missouri, without having her ticket signed as aforesaid, and stamped by an agent of the connecting road over which she had traveled on her said return. From Nichols station, defendant's road runs south to the Arkansas line, thence through the counties of Benton, Washington, Crawford and Sebastian in this state, and thence southerly, through the Indian Territory, to the city of Paris, in the state of Texas. Plaintiff and her husband boarded one of the coaches of defendant's passenger train going south, at Nichols station, sometime before daylight on the 1st day of January, 1893; and, having gone a short distance (about which the evidence is conflicting), the conductor demanded, and was shown, plaintiff's said ticket, and, observing that the same had not been signed and stamped as required, informed plaintiff that it was worthless, and, after some conversation with her, the nature of which is in dispute, informed plaintiff that she must get off at once, and immediately stopped the the train, and escorting her to the door and platform, followed by her husband, caused her to alight from the steps of the coach to the ground, in a manner which is also in dispute. At the time it was very cold and dark, and there is testimony showing that the ground was covered with snow or sleet, or both. There is testimony tending to show that the trainmen who assisted her to alight from the train did so in a rude and rough manner, jerking her down, so that she was hurt and bruised, and also that the place on which she was thus caused to alight was an embankment or "dump," and sloped outward, and was difficult to stand upon under the circumstances. There was testimony just to the contrary of this, the plaintiff testifying the one way, and the trainmen the other, as to the place at which and the manner in which she was put off. There was evidence also pro and con as to the manner in which plaintiff was treated by the conductor from the time he examined the ticket until she was ejected from the coach, her evidence being to the effect that his manner, words, and actions toward her were rude, rough, and profane; and that on the part of defendant that they were just to the contrary. The witnesses on the part of plaintiff testified that the train had gone a mile and a half, more or less, from the depot; and those on the part of the defendant, that it had gone but a short distance from the depot, and where its lights were still in plain view. There was evidence that, by reason of the plaintiff's exposure to the inclemency of the weather, and by reason of her having to walk a long distance from the point where she was put off to the first house near the road, there being no house observable at or near the place at which she was put off the train, she contracted a severe cold, producing pneumonia; so that she was confined to her bed for a long period after she arrived at her home, and also that she suffered much from rheumatism produced by such exposure.
The first contention we will notice is that which arose from the admission by the court of evidence to the effect that plaintiff had rheumatism sometime before she was put off the train and sometime afterwards. The testimony was not admissible, but the defendant contends that it was admitted, while the plaintiff contends that it was not admitted. The record shows that evidence to that effect was given, and that the defendant objected. The question was taken under advisement, but was never finally disposed of by the court, and seems to have been overlooked. We think defendant should have called the court's attention to it, and asked a ruling on its motion to exclude, and, failing to do so, waived its objection. More likely still, the evidence was never considered by the jury, as it seems to have been taken under advisement in their presence.
It was also objected by defendant, that the witness Humphreys, who was a passenger in the coach at the time, not having shown himself to be an expert judge of the time, speed, and distance at which trains may be running, or have run, on any given occasion, when the circumstances are such that he cannot observe external objects, was incompetent to testify as to the distance the train had gone from the station to where it was stopped and the plaintiff put off. We do not think this objection is tenable. It may be true that ...
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