ARK.] CHICAGO, , R. I. & PAC. RY. CO . V. GLASCOCK. 343 CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY V. GLASCOCK: r 4-2b8' -Opinion delivered May 1, 1933. APPEAL AND ERROR—QUETioN NOT RAISED BELOW:—Where a motion tO require a cost bond 'does nOt appear in the record, and no exception to the' cOurt's ruling therein is shown, and failure to require. it is not set out in the motion for new trial, the objection 'will pot, be considered on appeal. . 2. TRIAL—NECESSITY OF SPECIFIC OBJECTION.—Where two of three • paragraphs of an instruction are correct, a defect in the third paragraph . shouia be reached by a speeific objection. APPEAL AND' ERROR-. --INVITED ERROR.—Appellant cannot complain of an instruction where he requested a similar instruction. 4. RAILROADS—EJECTION OF . TRESPASSER.--An action for damages for ejection of. a tresPasser from a freight train at a dangerous place, resulting in injury, evidence held to sustain a verdict for plaintiff. NEGLIGENCE—WHAT LAW GOVERNS.—Where an injury to a trespasser ejected from a train occurred in another 'State, its laws govern as to the liability; bid the remedy must be pursued according to the laws of this State. 6. RAILROADSEJECTION • OP TRESPASSER.—Under the laws of Okla-homa, if a railroad's agent by threats and show of foree impelled a trespasser through fear to jump from a moving train and injury . resulted, the railroad,was liable. Appeal from Arkansas Circuit Court, g orthern District; W. J. Waggoner, Judge; affirmed. STATEMENT BY THE COURT. This appeal is from judgmenth for damages for the ejection of Floyd Glascock, a trespasser on one of appellant's tbrough freight trains, from the train near Haleyville, Oklahoma, causing him to fall through a trestle over which' the train was passing at the time and severely 'injuring him: • • • Floyd Wascock, 18 years old; inlMay, 1932, left Ark-ansas County in company with two other boys, who_ were older than he, in search of work. They got on a through freight train at'i3rinkley . on the Rock Island, appellant's road, and had arrived at Haleyville, Oklahoma, about sundown Wednesday of the same week without accident, where they remained during the night. On Thursday morning appellee; Floyd Glascock; left the 'other boys and
344 CHICAGO, R. I. & PAC. RY. CO , y. GLASCOCK. [187 went out and found some work: He returned in the evening to the railroad station so he might go on with the other boys. Mitchell, one of them, knew-some people at another place and thought they might get some work there. They .boarded one, of a.ppellant's freight trains about 10 or 11.o 'clock on Thursday night when the train was running about 6 to 8 miles -per hour, appellee, ,Floyd Glascock, going first up the ladder, being followe ' d by Butcher. Glascock was near the top of the fourth car from the engine, his head and shoulders being over or above the top of the car. The trestle was aboirt one quarter of a mile from where the boys boarded . the train, and there was a curve in the track near the point where the two boys were forced from the train. The special agent, Fore, had gotten into the engine cab after seeing the boys near the train when it -started out. He left the cab and was walking down on the top of the cars and flashed a strong light in Glascock's face and told him to get off the train or he would shoot him off. The Butcher boy jumped from the train, which was going about 10 to 20 miles per hour and was over the trestle, and when Glascock jumped he fell on the hard earth about 10 feet beyond where the Butcher bo3r 'struck the mud at the edge of the bayou. The special agent was about six feet, seven inches tall and was wearing a large white hat and had a gun-strapped about his waist. When he reached the Mitchell boy, who got the car ahead of the one upon which Glascock and the Butcher boy had boarded, and ordered him off, Mitchell told him they were on the trestle, and he did not require Mitchell to 0-et off. He forced the other boys on the next car to jump off, however, threatening to shoot them. They had not beard the remarks of Mitchell to the special agent and,did not know the trestle was there, it being dark and the -strong light of the agent's flash being in their faces blinding them. The special agent admitted that he had been on that route for some time, was familiar with the existence and condition of the trestle, and that it was his business to look over the cars and protect the shipments from being broken into and looted, and to keep trespassers off the train.
ARK.] CHICAGO, R. I. & PAC. RY. CO. v. GLASCOCK. 345 • The boys: had seen the special agent in the: yards with a•gun buckled on his person in a holster. They did not see. the gun at the time they were forced off the train by the agent's threat to shoot. them, as it was .dark and the gun Was on the other .side -of the agent, to the rear Of the- light, Which was flashed and held in the faces of Glaseock and Butcher: The Mitchell boy bad gone to the yards where the train was being made up and. talked to some of the :trainmen,. who told him to keep out of the sight of the Special agent, and, acting on the information; he took the other two boys some..distance away •so they could board the train near the main line. . • • The-evidence. of the Mitchell boy showed that, .immediately after the special' agent had forced appellee, -Glas-cock, from.the,train running oVer the trestle, he remarked to the specialilagent, ``You probably killed both of the boys," 'to which. the "special agent. replied: "The danin boys • should, not have, , been on the train." The Mitchell boy attempted to get off the train •after it had left the trestle to . look- for the other boys. and the special agent forbade hiM to leave' the train. He did leave the train, howerer, 'stepping froin the lower rung of the car lad4r. He returned to the trestle and Went down under it and found .b0th the boys near the creek.. * One of * the boys was wholly unconsCious AO practically- lifeless, and the Mitchell boY thought hin ,• i dead. The other boy was writhing in pain. The railroad company sent .an engine and car out to return ' the 'boys to Haleyville, where they kept both of themfro , m . 11 or 12 o'clock that night. until 4 o'clock the next afternoon. The Mitchell" boY testiW that he repeatedly.tried to get the company to gi've mech-cal aid to the injured boyS, and it was also shown that the Butcher boy, although only half cenScious, waS 'begging for help. The Mitchell boy thought the delay was due in part to the endeavor . of the railroad company to get its claim , agent back from Texas to Haleyville. He did not see the telegram, but heard the agent and. Other employees talking about getting the claim agent arid about wiring him. . . There is no . claim Made of the excessi-iNnesS . of the verdiet, 'and the . v teStiMOny relating to the injnry was not set out in the brief.
346 _ 'CHICAGO; R. I. & Pic. R y ._Co.' v. GLASCOCK._ [137 The railroad's tWo employees testified that the special agent got on the train in the cab of the engine with them and sat there, not leaving the cab at all, until they reached the next- town, '13 miles beyond Haley vine, as the agent himself also testified. He did testify that he had told the boys tO keep off the train when he flashed a light out of the cab on them when the , train first started. There was some testimony about statementS. that one of the boys had made that they were running-along to ,get the train and fell Off the trestle, not knowing it was there. It was about 20 feet from the track on the trestle to the ground beneath. . . The court inStructed" the *jury, giving appellees' requested•instruction No: 1:over objection 'and exceptione, and refusing to give appellant's requested inStruction for a. directed verdict', and, from the judgments:on:the verdicts in afTelleeS ',favor, the: appeal is pro'Secuted. Thos. S. Buzbee - d Geo. B. Pugh, for appellant. • A. G. Meehan arid John W. Monciief, for appellee. KIRBY, J., (after stating the fact's). It is first insiSted that the 'court erred in not requiring appellees to make a cost bond updn its motion made during the trial. The motion for cost bond, however, is not shown in the record, nor that ariy exception waS saved to the ruling of the court thereon, nor was the failure to require the giving of the cost bond set out in the motion for a new trial; and this objection therefore' cannOt be corisid-ered here. • In 'addition, the plaintiffs alleged iri their complaint that they were residents of the 'State of Aransas, and there was no deriial thereof. The- motion was not made until after the trial had been proceeded with, the jury im-iiarieled, and part Of the testimony heard. ; and the testimony On the point cannot be said on the whole to have established nonresidency anyway. It is next contended that the court erred in giving appellees' requested instruction No. 1, objected to, which was written in three different paragraphs: No specific objection was made to any of them, but only a general objection was made to the instruction as .a whole. At least two- of the clauses are' cbrrect Statements Of the
ARK.] 'CHICAGO, R: I. & PAC. RY. CO . v. GLASCOCK. 347 law, and-Conceding, not deciding, the other incorrect, since the instruction , was not 1 wholly'wrongi . the defeet should have been reachéd . by a- specific objection and hot a general one. No error -Was committed in giving it. Darden:v.. State, 73 Ark-..315, 84 S. W. 5071 St: :Louis I.M. if , SO. Ry. Co. y. :Barnett, 65 Ark. 255, 45.S: W. 550. .!. Appellant's requested instruction 'No. ' 2 ' contained the language that' such employee wilfully by threats or violence or by violence cansed said Floyd Glascock to' get off the train while it was running, etc.," submitted the same question to the . jurY as was' objected' to by appel= lant in appellees' said . instruction : No. 1; and, having concurred in the 'error comPlained of, if it was' error, waived it and 'cannot now complain here. St. -L., S.-F: Ry. Co. v. Vaughanz, 88 Ark. 138, 1. 13 S. W. 1035; WiScon; sin-Arkansas Luinber Co. v.. Ashley, 158 Ark. 379; 250 S. W. 874. The undiSputed' testiniony : shoWs that 'this appellee; Glascock; -and his compianiOns were 'around the station at Haleyville, intending' . to. ride free: 'on the freight' train going out of there: They' aCqUireclinfOrthation Trom'the trainmewahout the tiine it Would leave. -They had :Seen the special agent; whOse duty it wa's to . prote'et the:train from trespassers or persons who might break into the cars, and, he had told them not' to , get on the train:''That they had caught the train; and three witnesses testified that the special agent, by intimidation and fear by threatening to shoot them off the train, forced them to leave it at a dangerous place, and, as a result of the fall therefrom, two of the boys were very severely injured. The special agent knew where the trestle was, and the three boys, one: of whom was not forced from the train, saying he could not leave it because of the trestle, not-,- withstanding'whiCh the sPecial . agent Walked a 'few steps', threw his flashlight into the eyes of the other boYs and forced them to jump from the train while it was moving on the trestle, and the agent knew, such to be the case: It is true he denied that he had gone on top' of the train at all or Made any' threatS' or had anything: to do with ejecting the boys from,the train, and two other witnesses corroborated him about his having remained in
the 'cab of the engine all the'iwaY from Haleyville to the next station, but the jury beliel i ed the testimony-of aPpel- - lees, and' it is ample to sustain the ybrdict,'which is not claimed . by the aPpellant to be excessive: The injUry having occurred within the . State of Okla-homa, the laws of that State goVern as tO the liability, if any; but the . remedy to recover damages on account of the injury must be pursued according to the law of .this State where the suit was brought. St. L.-S. F..Ry, Co. v. Coy, 113' Ark: 265, 168 S.W.. 1146; St. L., I. M. (0 S. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S. W. 874.,, The Oklahoma -courts have hOld that it is unneces sary. to show actual physical violence and . assault ,to sustain an action for wrongful ejection of a. trespasser and "that, if by threats and show of force he (the conductor) impels one through fear to jump from the moving train, and injury results, the master will be liable." Polley v. C. R. I. (6 P. Ry. Co., 16.0kla. 32; 84 Pac. 1090 ; see also 52 C. J. 638-39; Kansas.City F. S. (6 G.Itd. Co: v..Kelley,,36' Kan. 655,14 Pac. 173 rKline v. C y P. R. zCo:, 27 Cal..400; 99 Am Dec. 282; Piet-de y .iNorth Carolina ,Ry.. Co:,.124- N. C. 83, 32 S. E. 399 ; St. Lbuis-S. W.-Ry. Co. v: McLaughlin,. 129 Ark. 377,-196 S. W: 460 , ;' see also Missouri Pac. Rd. Co. v. Rodden, anteth: 321. • • • ' We .find no error inithe record, .and the jridgment is 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.