St. Louis Southwestern Ry. Co. v. Mallard

• Decision Date: 03 June 1912
• Citation: 148 S.W. 261
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. MALLARD.
• Court: Arkansas Supreme Court

148 S.W. 261

ST. LOUIS SOUTHWESTERN RY. CO. v. MALLARD.

Supreme Court of Arkansas.

June 3, 1912.

Appeal from Circuit Court, Woodruff County; Hance N. Hutton, Judge.

Action by John Mallard against the St. Louis Southwestern Railway Company. From judgment for plaintiff, defendant appeals. Reversed and remanded, unless a remittitur for $2,000 be entered.

S. H. West, of St. Louis, Mo., and J. C. Hawthorne, of Jonesboro, for appellant. C. F. Greenlee, of Brinkley, for appellee.

McCULLOCH, C. J.

The plaintiff, John Mallard, instituted this action against the railway company to recover damages on account of a personal assault, alleged to have been made on him by the conductor of one of defendant's trains while he was a passenger thereon. He recovered damages below, and the company has appealed.

Plaintiff is a colored man, about 55 years old, a farmer, and resided in Woodruff county, Ark., at the time the incident occurred which is the subject of this inquiry. He had been sick for nearly eight months, most of the time being unable to work or attend to his farm duties, and on July 20, 1911, he took passage on one of defendant's passenger trains at Hilleman, in Woodruff county, to go to Fargo, which is a station in Monroe county. He states that just before the train reached Fargo the conductor, without provocation, assaulted him, inflicted several slight, but painful, wounds with a knife, and pushed or threw him down across a seat, causing his arm to be broken. The following is his testimony concerning the occurrence, which took place while he was in the coach set apart for colored passengers: "The conductor, Mr. Ferguson, came up behind me and said, `You are the negro that wanted to cut me yesterday,' and I said: `No; you are mistaken. I have not been on this road for five years. I have been sick in bed for eight months.' He said, `Oh, yes, you are, G____ d____,' and he threw his arm about my head from behind me, and commenced raking me on the top of my head with his knife he had in the other hand. At that time I took it as very rough play, although he was hurting my head with the knife, and I felt weak and bad anyway. I begged him to let me alone and told him I was sick; and then he said, `I will just cut your throat,' and he gave me a heavy rake across my throat with the jaws of his knife, which broke the skin and pained me greatly, and I thought it meant death, and I tried to slip down under his arm and get away from him, and I did get away from him and got on my feet, and he grabbed me and shoved me and wheeled me around and slung me on the seat, and my right arm struck the end of the seat and broke it just above the elbow, and I hollowed and told him my arm was broken. At this time the train had stopped at Fargo. Up to this time the conductor had said I was mistaken, the arm was not broken, but when he saw me try to get my hat, and the arm dropped, he said, `Yes, his arm is broken;' and said, `This is where you get off.'" He testified that he suffered great pain, and other witnesses who saw him get off the train say he appeared to suffer greatly,...