ARK. MO., PAO.. RD. CO: :4) . RODDEN; 3 211 MISSOURI PACIFIC RAILROAD COMPANY V. RODDEN. • 4-2981 Opiniiin delivered 'April 24,' 1933: 1. RAILROADS—JURY QUESTION. — Evidence that a man was . dressed in blue serge pants, blue jumper, carrying a lantern, and walking , on top of a freight train he " ld . to justify an inference that -he was a brakeman or in the employ of' the railroail. 2. RAILROADS — . LIARILITY FOk aimihkAN's AeT. :1 --Although tiAaintiff 1,1 ' ; could nbt identify the trainman which ejected him,from a freight •traln, this did not prevent =him . from recovering for injuries • • against the railroad.. , , ,
322 MO:PAC. RODDEN. [187 3. RAILROADS—LIABILITY FOR BRAKEMAN'S ACT.—Where, under a railroad's rules, it was the duty of trainmen to eject trespassers from freight trains, and in doing this he exceeded his authority either by putting him off the train while in motion, or by kicking him off, the railroad woUld be liable. 4. MASTER AND SERVANT—LIABILITY FOR SERVANT'S Am — Where a servant does an act within the scope of his employment, though expressly forbidden by his employer, the latter is liable for the resulting injury. 5. RAILROADS — LIABILITY FOR SERVANT'S ACT—INSTRUCTION. —An instruction to the effect that if a brakeman in putting a tresPasser off a freight train was acting contrary to instructions the jury sliould find for the railroad held properly refused. 6. RAILROADS—LIABILITY FOR BRAKEMAN'S • ACT.—If it was the duty Of trainmen to eject a trespasser from a , freight train, the fact that a brakeman : did this beeause plaintiff refused to pay for a ride did . not relieve the railroad from liability for his injuries. 7. DAMAGES—PERSONAL INJURIES.—kri award of $2,000 for injuiies • • to knees and chesf and from 'a spike stuck in the foot; preventing • plaintiff from drigaging in work which earned 'from $60 to $75 Monthlyi, held not excessive.- . 8. RAILROADS—JURY QUESTION.—Whether "defendant's brakeman kicked plaintiff off a freight train' while acting 'within the scope • of his authority held for the jury. Appeal from • Clark Circuit Court ; Dexte'r Bush, Judge ; affirmed. R.. E. Wiley and Henry Donham, for appellant. J. H. Lookadoo and g ush ce Bush, for appellee. • MEHAFFY, J. J. H. Rodderi, by his next friend, .0. B. Rodden, brought this suit in the Clark Circuit Court against the Missouri Pacific Railroad Company. The facts, as testified to by appellee, are substantially as follows : , J. H. Rodden; the -appellee, was about 19 years of age, and, prior to the time he alleged he was injured, he was at work at Sparenberg, Texas, and was coming home from there. He was accompanied by Earl Lawley and another boy, from Kentucky. Jack Williams met up with them at Dallas, Texas. They had been catching rides on the highway until they got to Texarkana, Arkansas, about :two . hours after dark, and went down to the railroad 1 yards. They found a man working on the engines, and asked him what time they could get a train out of _there to Prescott, and he told them \ between one and -two o'clock
ARK.] MO. PAC. RD. CO. V. RODDEN. 326, in the morning of February..29th. He told them where to catch the train up atthriroad crossing. They thought' he was a trainman becauSe he was working in the yards. Between 'one and two o in the morning they caught a freight train out of Texarkana going to Prescott. The appellee's mother and father- are . dead, and he had been living.with his ,uncle, O. B. Rodden, Who brings thiS suit as his next friend; • , There were •about 65 or .70 cars . in the freight train. They caught the train at the road crossing where the man working in the yards. told them to catch it. , They boarded the .train on , the east or right side. After they had gotten out of Texarkana a mile or . two, a brakeman came from the direction of the engine and passed the appellee first. Appellee .was on, the back end of a car, and Lawley and Williams were on. the front , ena. of the next car behind him.. The cars on which they were riding , were 10 or 12 cars back of the engine. The brakeman passed appel-lee and then passed the. Other two -boys and went on beyond theth abmit 15 Oars. When he came back by these twe boy§ he was.tnotionhig to them and talking to them, and they reached in their 'pockets and handed him . something. He' then.Walked up to the- car appellee was on arid asked him what he was holding. Appellee told him he was broke and waS goirig home; that he wa:s hungry, and asked the 'brakeman tO let him ride to the next stop. According to his'. testimony, the brakeman cursed him, -and appellee told him he could' not get off . there withorit killing•hiniself, the' train 'was going so fast. The brakeman again cursed him and told him • to get off or he woUld him. Appellee started down the ladder,. and, the .brakeman stepped on his fingers. The brakeman hung his lantern on the door and kicked tho appellee in the muscle of his right arm and paralyzed it,, then• kicked him in the head and chest. .Appellee saw he was going . to fall any way, .and threw his- head . as far as possible. .His foot struck a spike in the cattle guard. • His .head . hit .the ground, and about daylight he regained consciousness, and found that his boot was caught in the cattle guard. He pulled his foot out of his boot,.and found the flesh clotted up.
324 Mo.--PAc. arr.- Co. RODDEN. [187 The man that forced him off the train had on a hat; blu6 serge pants,_ blue jumper, and- had a . small lantern with a globe that was small at the top and big at the bot-: tom.. It had braces around it and protection bars. It was a regular railroad lantern: - Appellee's chest hurt him so that he could hardly get a deep breath withont pain; his • knee was 'a little stiff; and there was a skinned place on it. An-automobile came by on highWay 67 and the driver carried appellee to the Missouri Pacific Hospital at Tex-arkana. Appellee told the . driver how he was hnrt; that he was kicked off a freight train. The Man that took him to the doctor eXplained how it happened. The doctor said appellee was not hurt much. He grabbed appellee's foot, twisted the toes back, took a pair of scissors, went, around the gaA .and cut - the flesh, put Medicine on it, and wrapPed it up, and told appellee it Would be all right. Prior tO his injury, appellee was a pastry cook in a restaurant, but he got sick and decided to go home. He has not been able to follow his ocenpation as a cook since, he, was injured. , He cannot stand on hi feet . to work as he did before.. He has not done anything since he was hurt. He :hitch-hiked' his way, from Sparenberg to. Texar-kana, and the reason he did not hitch-hike his . way to Prescott was that he was broke and hungry, and wanted. to get home and get something . to eat. He did not buy a• ticket because, he : did not h*ave enough, money. He ,was. within fifty miles . of Prescott and wanted.to go. on home. The mail in the yard§ that told aPpelleb about the train was Oiling an engine. The only member Of the train crew that-appellee saW When he got on the train was a-man who caught the baci end of the train, the cabOose. Appellee was riding on a refrigerator car. The brakeman weighed from 140 to 170 pounds and Was rather heavy-set. Appellee did -not notice any badge on the brakeman, but noticed the way he was dressed, and that he was carrying a lantern. Appellee was unable to point out from the train crew which man it was who kicked him off. .
ARK.] V MO, NO. RD. 'CO. V. RODDEN. 325 • ' The evidence on • the part'Of the appellant contra-dieted the . testimony given by the appellee. t - 'The:jury returned a'verdictinlaVor of the appellee fôr $2,000. • The case 'is. here ion, appeal. , • • n • ' • • • ' • • t-'; Ther appelfantCOntends . that there' is hci'•substaritial evidence to establish that appellee was ejected from: the train by . A :brakOrnait ...! • • r • ' " • Appellee testifiedthatheWa.s ejected' by • A -brakaaan: When- asked hoW he knew -if :was , a 'brakeman; he- stated that lie Wag dressed in bine OverallS, • • wore' a, blue* juinper; And' Was vialkini . on top: Of • the • train from . the rorit • end tewards the reAr, • And then walked . back; and -that he had tailroad"lariterni. ' • - • ' • t - • • • • ' The conductor.testified that, so far as 110' kiiew.,•-the're was no one on the train except emPloYeeS • of the railroad company wearinga railroad Suit arid . carrying a lantern. It iS contended that there is no • evidence to shoW that thepaity who • kicked appellee froin the train:Was a brake,: man; no evidence that he was performing :..any • daties. The .jUry . liad.a right tOjnfer that the pefson -dr6ssed as apPellee Saysl this' person waS idreSsed,' carrying a lantern and- Walking 'On top :of th reight doing what , brake, then freuently do, was a; brakeman: In the: ease of St.; L.-,1 ie 48 ./krk..• 1277,2-;.S.'.-W. 783; the 'court aid "It-is not urged that there wAs - A 6i1ute of t-pioof .exceptin thth, Particular, viz: That Cost and-the -other: witnesses:were not pOsitive .that the man, Whom they , alleged was the Cause: of, the injury, :Was- one Of Ille:company!s• emplOyees: Upon his, examination in . ehlef; the 'plaintiff testified that the , than, alluded . to was . a brakeman .on. apriellant ?S. train; blit . on cross-exarnination he stated he did not. knovi that te be-a-fact. He • gave , as the reasOn for his: -belief, :however, that he' saw: the -man ori the platforM-At Cabot , with-a lantern,-, deporting hiniself as eniployee4 , and: Jathes Jenkins,' his other :witness . ; who-ro.de :from, Cabot- to !Little Reek OA the trainy.and cofroborated . COst . 's: statethent of .the accident, - testified : that, the :man -Acted as -arbrakeman on the train , between7 these , pointsli . ; • -"If thejnry credited the te g imOny that the niAn'VvA' for su'ch a length' 'Of tithe. tho Nitiipany 'in : óperat-.
- 3 ' 26 MO. PAC. RD. CO . V. RODDEN. - [187- . . ing its train, : it-was sufficient , to juStify the conclusion' that he was 'a regular employee. , Indeed, it would be difficult, in the most of these cases, to prove the,relation of-master and servant except by the fact that the, oneds;known to perform service' for the . other, or from their: course of dealing,'' It would be difficult to make any. : direct proof that relation of .master and .servant existed between any one of the train;crew and the railroad:company. It is, a matter of common knowledge that' persons dressed as Ithe appellee testifies this brakeman was dressed,- carrying a lantern and walking on top of. a- freight train as ,this man was, is a brakeman, or in the employ of the railroad company. The rules require the trainmen to prevent trespassers from riding on freight trains; and.it , is the duty of the trainmen, as the evidence in this case shows, to, put,such persons off the train.- The rules of the, company require them to do this. It is true that the rules require the trainMen tb trespaSsers off the train when it is }not:in motion-, but putting trespassOrs: off the train,is a part of their:duty; and, if appellee's testimony , is,. true, that , ' is, what this man' Undertook to do. We, think therefore -that' the evidence was sufficient to submit the, qu'estion as, to whether this man was a brakeman.to the jury; . • Appellant; . however; Says that, if appellee bad sued any one of - the trairimen jointly . r with- the railroad company for.the injuries-wbich' he sustained, the court would haVe been- comPelled to . :direCt a verdict in favor-Of the individnal trainman because , there was no eVidence intro duced upon -which a judgment against, any one of the trainmeri could have been sustained. That is true, because the appellee was unable to say which one of the train crew kicked.him off the train, and, in order to get a judgthent against any. person for a wrong; the evidence must 'show that that particular Person committed, the' wrong. But the suit .is not again gt - the trainman who committed the wrong, but against the railrdad company, and there is no question'but that the appellant is the railroad company whose employee, committed the. wrong. A
ARK.] Mo. PAO. RD. CO . .i). RODE*. 327, perion might be abused, kicked from the . train by any one of the trainmen and be unable tO say which . one it was when he sees them in court, dreSsed 'differently frem the way they Were at the time of the injUry. It is said that neither of apPellee'S-COmpanions were called to testify. 'His tWo comPanfons were on the freight train and were net Put off. The evidence shoWs that Williams was from Kentucky, but does not show where Lawley 'Was from, but they Were both on 'the train, remained on the ...train when- appellee saYs he-was kicked off, and they may or may not' know 'what became of him. At any . rate; the evidenCe IS silent as to Where they went and Whether they kneW anything about appellee's injUrY. , It is next contended that there is no substantial revi-dence„that appellee was ejected from the train.by a brakeman within the SCope a his emplOyinent. Appellant again relies on the liendrick g Case, sz4ra. The court in that case said ; on . , this, 4uestien, : "Whether a particUlar , act waS. or Was net done in the iine of the servant's duty.is, queStiOn to be determined by the Jury from the surround,- ing facts and circiimstanceS." The court further: said in that case : "It was ; the legal right of the company to eject persons AtteMpting to ride on its trains . without paying fare, and' the legitimate object of the testimony was .. to show - that the right was commonly enforced through the class of employees that ejected the plaintiff. *, * * The fact that brakemen commonlY performed the duty of ejeCting . suCh 'p ersons , Ti4 om appellant's freight trains afforded a reasonable presuMption or inference thai the brakeman who ejecied the plaintiff. acted :in the line of his duty, if the jury chose te believe that he was ejected by a brakenian for- the nonpayment of his fare." Appellant calls attention to and relies on the case of St. Louis, I. M. (6 S.; R. Go. v Fell, 89 Ark. 87, 115 S. W. 957. This case expressly Approves the doctrine announced in the Hendricks , case. If the person who kicked appellee from the train was acting in the course of his employment; the railroad company was liable. "If he waS, the CcimpAny is liable in damages for any wrongful act of his in the con _ tse of hi g .einployment
328 _ _Mo. _PP, C. RD 0.2V-RODDEN._ _ 1 187_ resulting in. injury - to anOther, though he exceeded his authority.":,Ry. Co. v. Hackett, 58 A:rk. 381, 24 S. W. 881. If, -ander the rides of the company, it was the duty of the trainmen to. eject trespassers from freight, trains; and in doing this he exceeded his authority either by. putting him off tile train while it was in i motion, or kicking him off, .in either event the railroad cOmpany wonld be liable. . "A servant may do an act exPressly forbidden by his employer, and yet, it, be within the scope cf his authority, the , employer may be liable for a reSulting injury. This rule is constantly enforced in cases against railroads, electric light and gas companies, and it.applies to private persons who emplOy , servants to transact their business.", St Lövis, I.M. &S. R:'Co. v. Graat, 75 Ark. 579, 88 S: W: 580; 1133 ; St. 'Louis, I. M. & S. R. Co. v: Itoberto;a; 103 Ark. 1 361,- 146 SY-V . V. 482 ;-St.• & S. R..Co:`v:''Myncitt, 83 :Ark 1 . 6; 102 Ark'3'86'.St.'1: TV: Ry.' Co. V. Mitchell, 100 A:rk. 314, 146 S W 136 St. P. it„Co. V. Vali Zitnt,.101 Ark:: 586, 1:42 S: W. 1144; Chicago, R: I: &'P'. Ry Co v WOmble, 131 Ark. 411, 199:8. W. 811- i ApPellant cites the case of III. Ceutral Rd. CO: V. Latham, 72 Miss. 32.. .That, case , seeins ;to be nOt only against the 'Weight of authority; lint is in direct confliCt With our decisions. It is cc:intended by appellant that the Court erred in refusing td 'give its requested instructions Nos. 7 and 9. • • .• No. 7 read4 as toilCWs : "If yon find froni the „evidenCe that J: H. , Rodden` WaS asSaulted by one of the defendant's employees -While , he' was' riding as a 'trespasser uPon One of the defendant's trains, still if y - ou further find that such employee was aCting outside Cf the scope of hiS employment and contrary to instructions of his employer when committing said assault, then the defendant is not liable and:you should so find."' :That instruction is erroneons becanse it tells the jury, among other things, that, if the employee was acting contrary to his instructions, they must find for the defendant. No. 4, given at the request of the appellant, covers everything in No. 7 e)wept the statement„about being contrary to instructions.
No. 9 reads as f011oWs : 'If: you find from the evidence that J. H. Rodden: was assaulted and ejected .from the train , by: one: of the , defendant's, brakemen,- and you further.find that said.brakeman assaulted:the said J. H. liiodden ! and:ejected him ' frona the train because the said J. H., Rodden ,failed or refused to ;pay : the brakeman:to permit him to ride on. the train, then your verdict should be for the ; defendant.' , No..9 was,correetly refused. , If,it was the , duty, ofi .the.,trainmen to. eject .trespassers, - the fact that t ' he brakeman did this becanse appellee refused ,to pay would ,be . , It is next contended by appellant that the verdict is excessive. Th.e evidence showed ; that the spikes stuck in appellee's .foot;. that his knee and chest were injuredi that he is unable to : do the work he did . before he was injured, and that he still suffers pain. He was earning from $60 to $75 per month before the injury, and is now unable to do the kind of work he formerly did. The facts above stated, we think, are sufficient to justify the verdict. Whether : it .was a brakeman who kicked the appellee off the train, and whether he did it while. acting within the scope of his. authority, are. questions of fact, and were properly submitted to the jury. If there is any substantial evidence to sustain a verdict, 'this _court cannot set it aside, although we might believe that it was montrary to fhe preponderance of the ey idence. We do not pass on the weight of evidence nor the , Credibility of the witnesses. . The judgment of the circuit courtis . correct, and is Mere . fore :affirmed. •-":%
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.