St. Louis Southwestern Railway Company v. Underwood

• Decision Date: 01 April 1905
• Citation: 86 S.W. 804,74 Ark. 610
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. UNDERWOOD
• Court: Arkansas Supreme Court

86 S.W. 804

74 Ark. 610

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. UNDERWOOD

Supreme Court of Arkansas

April 1, 1905

Appeal from Monroe Circuit Court GEORGE M. CHAPLINE, Judge.

Affirmed.

STATEMENT BY THE COURT.

On the 28th day of October, 1902, the appellee, a minor, by his next friend, A. J. Hughes, instituted this action, and alleged that on the 4th day of July, 1902, in the town of Brinkley an employee of the appellant negligently threw a trunk out of its car, which fell on the appellee's foot, without his fault; that he was passing over Memphis avenue, upon which the appellant's track is laid. The trunk fell with such force as to mash his foot, and he suffered great pain therefrom, and asks that he be awarded $ 1,000 damages.

The appellant answered; denied negligence or carelessness on the part of its employees; denies that the trunk fell or struck the appellee, or that it mashed his foot; denied that appellee was passing Memphis avenue, as alleged in the complaint; denied that the appellee suffered any pain, or that he received any injury, at the time mentioned, or at any other time.

A. J Hughes testified as follows: The Lonoke train had arrived; we were going to it; we were at the end of the Cotton Belt depot; I intended to go to Lonoke, and the children were to remain in Brinkley. While passing the Cotton Belt depot, the train arrived; they were unloading baggage from the baggage car the trunk was thrown on a truck, and it bounced over, and fell to the ground eight or ten feet from the car, and struck the appellee; knocked him against the banister, and injured his foot and ankle; it was a bad sprain; flesh all torn off his foot; he suffered a good deal of pain, and suffered for a month when he would walk or stand upon it all day. He hobbled around, but it hurt him; he wore his shoes off and on probably a week after the injury, but did not wear them regularly for a month. Witness was up with the appellee during the night for a couple or three weeks after the injury. He did not labor. The Cotton Belt arrived at 3 or 4 o'clock in the afternoon. Witness and the appellee were going to the Choctaw depot. The train was there. "We were going to the Cotton Belt train. I suppose they call it a depot, alongside of the train. We were going north on the Cotton Belt."

Appellee testified that they were going by the Cotton Belt depot; in passing a baggage car the baggageman threw a trunk out on the truck, and it fell from the truck, and hit his left foot; hit his toe, and struck his ankle. His uncle put some liniment on it. He suffered from pain a good deal afterwards; ankle swelled. Appellee was earning from 50 to 75 cents a day; did not work for a month; bought two bottles of liniment; pretty bad hurt; broke skin a little at the end of the toe, slight scar here. Baggageman was fixing to throw the trunk out, he turned his head, and it struck his foot as he made the step. Witness went about the town of Lonoke shortly after the accident. The appellee is fifteen years old.

Maggie Underwood testified. She is a sister of appellee; she was with when he was hurt. He suffered a great deal; they went to Brinkley on the 4th of July; they were going north; walking pretty fast; there were a great many people on the walk; the appellee was behind and in passing the baggage car the trunk was thrown on a truck, and it bounced over, and hit appellee's foot; knocked him over against some irons. Witness was in front of "Boss" when he got hurt they were going to the Choctaw depot with their uncle to tell him goodbye.

Chas Madison testified that he supposed the boy was standing about the trucks; the train porter threw the trunk out; it was witness' duty to catch it. One of the trunks was a little too swift, and it went over the truck, and struck he boy. The boy grabbed his leg, and commenced to cry. It was a medium-sized trunk.

A. M Finney testified he remembered the trunk striking the boy; thought the boy was standing still when he saw him. When the trunk was thrown out of the baggage car on to the truck, he and the porter attempted to catch it, but it was a little too swift; he could not hold it, and it struck the boy's foot. The truck was very close to the car. The trunk struck truck, one corner of it, and fell on the platform. He saw the boy standing near the truck before the trunk came out of the car.

Sid Simpson testified he was marshal of the town of Lonoke; he saw the appellee on the streets of Lonoke frequently during the month of July, 1902, and he never saw anything wrong with him at all. He saw him very frequently; did not remember if he saw him every day or not, but he was not limping when he saw him. Never heard any complaint about the accident.

J. M. Cobb testified he was a resident of Lonoke; knew the appellee; could not tell precisely when he left there, but he saw him in the month of July every day, or perhaps two or three times a day, walking up and down the streets. He saw no evidence of injuries to the boy's foot. He noticed his foot wrapped up; sometimes he had it wrapped up for two or three days; he went about as usual; could detect no difference in his walking. The appellee and his next friend, Mr. Hughes, worked around Lonoke at common work. He thought he paid him 50 cents a day.

R. J. Hawkins, of Brinkley, testified he saw the appellee on the 4th of July walking around after the accident; he limped a little; did not think his foot was bruised to amount to anything; boy had on his shoes and stockings.

The court then gave the following instructions:

"The court instructs the jury that if you find from the preponderance of the evidence that on July 4, 1902, a baggageman, while in the employ of the defendant, on defendant's train, in handling a trunk in defendant's baggage car, so negligently and carelessly handled said trunk that through said negligence and carelessness the trunk fell on plaintiff's foot and caused the injury complained of you will find for plaintiff in such sum as will compensate him for the injury sustained and pain suffered, as shown by the proof, not exceeding the sum...