Texarkana & Ft. S. Ry. Co. v. Anderson

• Decision Date: 04 November 1899
• Citation: 53 S.W. 673
• Parties: TEXARKANA & FT. S. RY. CO. v. ANDERSON.
• Court: Arkansas Supreme Court

Page 673

53 S.W. 673

TEXARKANA & FT. S. RY. CO. v. ANDERSON.

Supreme Court of Arkansas.

November 4, 1899.

Appeal from circuit court, Little River county; Will P. Feazell, Judge.

Action by Turie Anderson against the Texarkana & Ft. Smith Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

Trimble & Braley, John A. Eaton, and Shaver & Norwood, for appellant. Collins & Lake and T. E. Webber, for appellee.

BUNN, C. J.

This is an action for personal damages, laid in the complaint at $2,500, and verdict and judgment for $500, from which the defendant railway company appeals. Perhaps to state the case in the briefest and most intelligible manner is to quote from the allegations in the complaint, and then give the evidence in support of the same: "The plaintiff, Turie Anderson, states that the defendant, the Texarkana & Ft. Smith Railway Company, is a corporation organized under the laws of the state of Arkansas, and operated between Texarkana, Arkansas, and Horatio, in said state; that on the 25th day of July, 1895, plaintiff, desiring to go to Ashdown (a point on said railroad), purchased from defendant's agent at Mistletoe (one of defendant's passenger stations) tickets for herself and two children to Ashdown and return, and paid therefor a valuable consideration, to wit, the sum of forty cents each; that said tickets entitled plaintiff and her children to first-class passage on the passenger trains of defendant company to Ashdown and back to Mistletoe. Plaintiff further says that on said 25th day of July she offered herself and said two children as passengers to the conductor of one of defendant's passenger trains, and was by said conductor accepted as such both to Ashdown and return. She further says that she and her two children were properly and safely conveyed to Ashdown, but that on her return from Ashdown to Mistletoe, in the evening of said day, plaintiff and her said children were exposed to taunts and insults from both passengers and employés of defendant company; that the conductor in charge of said train, and other employés connected therewith, together with a number of the passengers, were drunk, and consequently boisterous and insulting to plaintiff and other lady passengers; that before reaching Mistletoe, plaintiff's destination, she notified said conductor that she desired to leave the train there, and demanded that he bring the train to a stop, which he at the time, with an oath, refused to do; that by reason of such refusal plaintiff was compelled to pass her destination and go on to Horatio, the terminus of defendant's road, a distance of ____ miles, and that the trip to Horatio and back to Mistletoe was made at imminent risk to lives of plaintiff, her said children, and other passengers, by reason of the drunken and reckless condition of defendant's employés and passengers on said train; that said employés and passengers were swearing, carousing, and shooting off firearms, and demeaning themselves otherwise to the alarm of plaintiff. Plaintiff further says that, if she had been permitted to leave the train at her destination, she could have reached her home (about two miles from defendant's line of road) early in the evening, whereas, in consequence of having been negligently and carelessly carried beyond same, she could not and did not reach her home until late in the night. Plaintiff further says that by reason of defendant's carelessness, insults, and negligence, plaintiff was damaged in the sum of two thousand and five hundred dollars, wherefore she asks judgment against defendant company for said sum of two thousand five hundred dollars, and other proper relief." This complaint was sworn to positively, and the defendant answered as follows, to wit: "Defendant denies that plaintiff purchased passenger tickets from it, or rode on its passenger train, and denies that its employés were in charge of said train, or were drunk or guilty of any misconduct, and denies that it carried plaintiff by any station, or that she has been damaged in the amount sued for, or any other amount, by reason of any act or default of defendant. Defendant avers that plaintiff was riding on an excursion train, which had been chartered from defendant by others, and which was not under defendant's control, except as to its safe movement over defendant's track; that all tickets on said excursion train were sold, and fares collected, by the parties who chartered said train from defendant for picnic or excursion purposes; that plaintiff agreed with those in charge of said train to ride thereon to Horatio and return to Mistletoe, which she did voluntarily, and was safely conducted accordingly, wherefore she is estopped from complaining."

Upon the theory that this was an excursion train chartered by a third party for the day, for the purpose of carrying picnickers or excursionists, as set forth in the answer, at the instance of the plaintiff the court gave instruction No. 2, over the objection of defendant, which is as follows: "You are instructed that the defendant company cannot relieve itself of liability by evidence...