St. Louis & San Francisco Railroad Company v. Van Zant

• Decision Date: 08 January 1912
• Citation: 142 S.W. 1144,101 Ark. 586
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. VAN ZANT
• Court: Arkansas Supreme Court

142 S.W. 1144

101 Ark. 586

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. VAN ZANT

Supreme Court of Arkansas

January 8, 1912

Appeal from Craighead Circuit Court, Jonesboro District; Frank Smith, Judge; reversed.

STATEMENT BY THE COURT.

This suit was brought by Walter Van Zant, a minor, by his next friend, for damages for personal injuries, alleged to have been caused by the wrongful conduct of defendant's employees in assaulting, beating and robbing him, and throwing him from a local train, upon which he claimed to have been a passenger.

The answer denied the material allegations of the complaint, and alleged that appellee boarded a work train, which was not authorized to, and did not, carry passengers, without the knowledge or consent of the employees in charge thereof; that he paid no fare, and that if he was injured the injuries were inflicted after he left the train by persons not in charge thereof, and as a result of his abusive and insulting language to them; and denied any liability.

Appellee testified that he boarded a local freight train on defendant's line of road near its depot at Marked Tree after being asked by one of the employees, whom he took to be the conductor, where he was going and if he had any money, to which he replied that he did and was going to Dewey's Mill, about three miles away; that, after he took his seat in the caboose and the train had gone some distance, the same man who had invited him to get on, and who had a long leather-covered book in his back pocket, and who he thought was the conductor, approached him, and he, intending to pay his fare, took out his own purse, looked in it and took a dime therefrom, the fare, and handed it to the conductor who, hearing some money rattle in the purse, snatched it out of his hand, took about nine dollars out of it, gave him the purse back, and also took from him a pair of ladies' shoes that he had wrapped up in a bundle. That he at the time thought the conductor was trying to play a joke on him, and that, after riding a considerable distance and nothing being said about the return of his property, he walked out on the back platform of the caboose and begged the conductor to give him back his money and shoes. That he was thereupon struck in the face and knocked over the back rail of the platform off on to the ground and injured, and that this man and some of the other employees jumped on him and beat him and chased him, throwing rocks at him, running him into a barbed wire fence, in which he became entangled, and was further greatly injured.

One witness corroborated his statement as to being thrown from the train and pursued by the employees.

The testimony on the other hand tended to show that the train was a work train, hauling ballast, composed of eighteen coal cars, the caboose being on the front end next to the engine and the Ledgerwood engine being upon the last car in the train. That appellee got upon this Ledgerwood car several hundred yards from the station while the train was standing on the siding, and was first discovered by the employees sitting on the end of the car with his feet hanging over. That the brakeman jollied him some about the woman he was buying the shoes for, and finally there was some loud talking between them, and that when the train stopped about two miles out that the sides of the cars from which the silica or ballast had already been thrown could be closed, the brakeman ordered him to get off the car. That he did so, leaving the pair of shoes where he had been sitting, picked up a large piece of rock, came back to the edge of the car, and said "Now, you dam white sons-of-bitches, give me my shoes." That thereupon, Dan Dixon, who belonged in the working crew and not in the train crew, kicked him in the face, knocking him down, and then jumped off the car, and pursued him a little ways, throwing two or three rocks at him. All the witnesses, three or four, on the train corroborated this statement, and the conductor of the train stated that he did not invite him on the train; that he did not know he was on the train until after it had proceeded some distance from the station; that he did not ask him for any fare, did not collect any fare from him, and did not touch him at all and that he was not assaulted by him or by any one until after he had left the train, and then by Dan Dixon, under the circumstances already stated.

The instructions submitted the case to the jury upon two theories. One that he was a passenger, and the other that he might recover, even though he were a trespasser, the court giving on the latter theory instructions numbered 3, 5, 6, and 8, over appellant's objection, as follows:

"No 3. If you find from the evidence that at the time plaintiff entered said train he knew or had reason to believe that said train was not intended to carry passengers, then he was not a passenger upon said train, but was in legal contemplation a trespasser, and can not recover damages for injuries received while on said train, unless said injuries were wilfully or wantonly inflicted on the plaintiff by the servants of defendant in charge of said train.

"No. 5. You are instructed that one who boards a train having reason to believe that such train does not carry passengers is a trespasser upon said train, although he may pay his fare, and the conductor or other employees in charge of said train may expel such person from said train, using only so much force as is necessary to expel such person from the train, but this would not authorize the employees in charge of said train to wilfully or wantonly assault such person while on said train or to commit an assault upon him after he had been expelled therefrom.

"No. 6. If you find from the evidence that the conductor or one of the employees of the defendant in charge of said train, after said train left Marked Tree, Arkansas, struck and knocked the plaintiff from said moving train, and that by reason of said blow the plaintiff fell from said train to the ground and was injured thereby, and that thereafter and immediately following said assault other servants of defendant upon said train joined in the assault upon plaintiff, and beat, wounded and otherwise injured him, and you further find from the evidence that said assaults were not made by said servants or either of them in defending themselves from the assaults of the plaintiff, and that there was no provocation on the part of the plaintiff which tended to bring about said assaults on the part of said servants, then you are instructed that if you find that such assaults were made, that the same were wilful and wanton.

"No. 8. If you find from the evidence that plaintiff entered said train, knowing at the time or having reason to believe that said train did not carry passengers, then you are instructed that, although the plaintiff paid his fare to the conductor, he, (the plaintiff) was in legal contemplation a trespasser, and the defendant owed him no duty, other than to refrain from wilfully or wantonly injuring him.

"If you find from the evidence that the plaintiff was a trespasser, and that the servants of defendant in charge of said train assaulted, beat and knocked the plaintiff from...