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Action by Falls Bolling against the Hous- in early from work,-between 5 and 6 o'clock, ton, Central Arkansas & Northern Railway --at the express orders of Bolling, for the Company for injuries received while riding purpose of taking two ladies on the hand on a hand car. Judgment for plaintiff, and car up to Mr. Kinnebrew's residence, which defendant appeals. Reversed.

was about a quarter of a mile beyond the The appellee, a boy about four years old, end of the section, and off of section 6. Kinwhile riding on a hand car of appellant, had nebrew was very ill. His wife desired Mrs. his hand crushed in the cogs by which it Meyer to come and sit up with her. Mrs. was operated, and for the injury recovered Meyer had asked Mrs. Maxwell to go with damages in this action in the sum of $5,000, her, and Mrs. Maxwell had consented. So, to reverse the judgment for which the ap- in order to get to Kinnebrew's, these ladies peal in this case was taken. The facts in asked either Mr. Bolling or his wife or both the case are substantially as follows: Park- to let the section men carry them up to that dale is the center of a section of defendant's point on the hand car. Mr. Bolling consentrailway in Ashley county, Ark. The sectioned, and ordered the men to come in early was about six miles long, and Parkdale was from work, and carry the ladies to Kinnesituated about the center. At Parkdale was brew's. One of the section men testified: located the railway company's section house, "We were employed on that section (No. 6), at which the laborers and foreman resided. and it was the duty of the hands on that On March 29, 1892, one Bolling was fore- section to see erery part of the road on that man of that section (No. 6), and had charge section every day. When we got ready to of all the work thereon. He lived at the sec- start over the north end of the section, on tion house at Parkdale, with his wife and said March 29, 1892, Falls Bolling, a child child, Falls Bolling, who was at that time about 4 years old, began to cry, and wanted about four years old, and who is the real to go with us," etc. At 5:20 p. m. the section plaintiff in this suit. On March 29, 1892, men quit work, and came into the section Section Foreman Bolling was very ill, and house. On their arrival, Mrs. Bolling, who one Mike O'Connor, one of the regular sec- knew the purpose for which they had come tion hands, was presumably acting as tem- in so early, sent word to the ladies that the porary foreman. The duties of these sec- men had come, and would take them at once. tion hand3 were to keep the track of their In the meantime Falls Bolling, the child of section in repair, and do all things neces- Mrs. and Mr. Bolling, and plaintiff in this sary to that end. Their working hours case, was standing near the hand car, crying were from 7 o'clock a. m. to 6 o'clock p. m. to take a ride on it. Mike O'Connor--who, each day, and, except in an emergency, the the testimony shows, was much attached foreman and laborers were not required to to the child, and made a pet of it-asked its be on the track outside of these hours. In mother to let it go with them on the hand order to enable this section crew to do its car, and Mrs. Bolling consented, saying, work, all the tools necessary were furnished "Take good care of my boy, and bring him them by the railway company, and among back safe." To this O'Connor replied, apthese tools was a hand car. This hand car parently in a joking manner, “Yes, we will was furnished them for the express purpose bring him back safe, or we will bring him of transporting the section laborers, with back a corpse." Upon this reply being made, the tools, implements, and materials, to and Mrs. Bolling then told the men "to leave her from the several places on the line of road boy alone, and not to take him.” The men within the section, wherever needed, and for made no reply to this, but simply laughed. no other purpose. Indeed, the rules and As to whether or not this conversation acregulations of the defendant railway com- | tually took place the proof was contradictory. pany forbade the section foreman or any one After this conversation, Mrs. Meyer and Mrs. of the section men allowing any one to ride Maxwell (or about that time) arrived, and on the hand car except the laborers on the got upon the hand car, the plaintiff being section. They were forbidden to use the taken charge of by Mrs. Maxwell, who held hand car except in their work, and the proof him in her arms while riding on the hand car shows that the hand car was never intended up to Mr. Kinnebrew's. After Mrs. Maxfor, nor was it ever used for, the transporta- | well, Mrs. Meyer, the plaintiff, Falls Bolling, tion of passengers. On the contrary, the use and the crew had got themselves upon the of the hand car was, for this purpose, posi- hand car, they then proceeded up the road tively and affirmatively prohibited. The sec- a distance of about 342 miles, to Kinnetion foreman and his men had absolutely brew's, and on arriving there the ladies got nothing to do with the transportation of pas- off the car, O'Connor going with them up to sengers. On the contrary, they were forbid- the house. After sitting for a while in soden to do such work, or to carry passengers | cial conversation with the ladies, O'Connor reon the hand car or in any manner. The turned to the hand car, and started back to proof was clear and undisputed that Section the section house. On its way back it overForeman Bolling had knowledge of these took one Grant Johnson, a negro man, walkrules, and that he had repeatedly imparted | ing along the track. The hand crew, in the his knowledge to O'Connor and his crew. | goodness of their heart, stopped it, and took On March 29, 1892, the section hands came Johnson aboard. Up to this time the child,

case.

Falls Bolling, had been riding on the front of, opinion of the court. He said: “Whether the car, and was safe and sound. But short- the boy could be treated as a mere trespasser ly after Johnson had boarded the car the is scarcely the question. His youth might little fellow commenced to grow sleepy, and possibly excuse concurrent negligence, when began to nod. O'Connor and the crew ob- there is clear negligence on the part of the served this, and fearing the child might fall company. The true point of this case is off the front of the car, O'Connor moved him that, in climbing the side of the tender or back from the front to the side, close to the engine at the request of the fireman, to perstandards where the cog wheels work. The form the fireman's duty, the son of the plaincar continued on its journey, but shortly tiffs did not come within the protection of thereafter the boy fell asleep, and in some the company. To recover, the company must unexplainable manner got his hand caught have come under a duty to him, which made in the cog wheel and crushed. In the court his protection necessary. Nor can the mere below it was contended by appellant that youth of the boy change the relations of the Mike O'Connor and his section men were

That might excuse him from concuracting wholly and entirely without the scope ring negligence, but cannot supply the place of their employment when they undertook of negligence on the part of the company, to carry these ladies, the plaintiff, or the col- or confer an authority on one who has none. ored man upon the hand car; that it was not It may excite our sympathy, but cannot cre a part of defendant's duty to carry passen- ate rights or duties which have no other gers, either for hire or for pleasure, upon foundation." In Eaton v. Railroad Co., 57 hand cars; that such means for the transpor- N. Y. 382, it is said that: “Railroad comtation of passengers was unknown to de panies have the right to make a complete fendant's system of business; that it was separation between their freight and pascontrary to the usual mode of doing business senger business. When this is done, the conupon this, as well as other, railroads; that ductor of a freight train has such general the rules and regulations of the railway com- authority only as is incidental to the business. pany forbade it; that no employé had au. of moving freight, and no power whatever thority, power, or right to involve the defend- as to the transportation of passengers; and ant in such a manner. Defendant further notice of this limited authority will be im- . contended, and evidence was introduced to plied from the natural and apparent divishow, that the printed rules and regulations sions of the business. • In the great of the defendant company positively forbade transactions of commercial corporations conthe section foremen, or any and all of his venience requires a subdivision of their opsection hands, from using the hand cars in erations among many different agents. Each their possession for any other purpose than of these may have a distinct employment. doing work upon the road.

and become a general agent in his particular

department, with no powers beyond it." Dodge & Johnson, for appellant. Wells &

Page 389. In Stone v. Hills, 45 Conn. 47, it Williamson and Dan W. Jones & McCain,

is said: “The rule is that for all acts done for appellee.

by a servant in obedience to the express or

ders or directions of the master, or in the HUGHES, J. (after stating the facts). In execution of the master's business, within the Flower y. Railroad Co., 69 Pa. St. 210, the scope of his employment, and for acts in facts were as follows: A train of defend- any sense warranted by the express authority ant's, coming into the city, the engine, ten- conferred upon him, considering the nature der, and one car were detached from the re- of the services required, the instructions mainder, and were, under the charge of the given, and the circumstances under which fireman in the engineer's place, sent to a the act is done, the master is responsible. water station belonging to the defendants. For acts which are not in these conditions, the At the station, the fireman asked a boy, 10 servant alone is responsible.” In Storey v. years old, standing there, to turn on the wa- Ashton, Cockburn, C. J., said: “We cannot ter. While he was climbing the tender to put adopt the view of Erskine, J., in Sleath. in the hose, the remainder of the train came | Wilson [9 Car. & P. 607), that it is because down with their ordinary force, and struck the master has intrusted the servant with the car attached to the engine; the jar threw the control of the horse and cart that the the boy under the wheels, and he was killed. | master is responsible. The true rule is that In an action by the parents for his death it the master is only responsible so long as the was held that, it not being in the scope of servant can be said to be doing the act, in the the engineer's or fireman's employment to doing of which he is guilty of negligence in ask any one to come on the engine, the de- the course of his employment as servant. fendants were not liable; that the boy, in L. R. 4 Q. B. 476. Thus it will be seen climbing on the tender at the request of that, in the absence of express orders to do the fireman, did not come within the protec- an act, in order to render the master liable tion of the defendants, and they therefore the act must not only be one that pertains to owed no duty to him. The appeal in this the business, but must also be fairly within case was before Justices Agnew, Sharswood, the scope of the authority conferred by the and Williams. Judge Agnew delivered the employment.” Wood, Mast. & Serv. 546. In

The ,

the case at bar the section foreman was not

"Funsten & Co., Commission. only not authorized, expressly or by implica- "$39.67.

St. Louis, 30th Jan., 1890. tion, to permit persons to ride on the hand “Pay to the order of W. H. Peters thirtycar, but had been expressly forbidden by the nine & 67/100 dollars. rules of the company and otherwise to per

"Funsten & Co. mit it, and there was no custom to permit “Merchants' National Bank, St. Louis. persons to ride on the hand car shown to "No. 41,383." have been known to or acquiesced in by the Indorsed on the back, "W. H. Peters." officers of the railroad company. “In order —That said forgery was made with the inthat the railroad company should be made tent to cheat and defraud said W. H. Peters responsible by reason of such a custom, it and Funsten & Co. was necessary to show that it was actually This indictment was pending against the known to the officials who conducted its busi. defendant until October, 1893. The case was ness, or that it was so general, and of such then resubmitted to the grand jury, and on long continuance, that it must be fairly in- October 30, 1893, another indictment for the ferred that it was known and assented to by same offense was returned against appellant. them." Taunton v. Inhabitants of Ware- The second indictment set out the same ham, 153 Mass. 191, 26 N. E. 451. Such is check, but, instead of alleging that defendant not shown to have been the case here. The court deems it needless to set out or discuss the indorsement of W. H. Peters upon said the instructions. The court is therefore of check, and that the forgery was committed the opinion that there is a total failure in with the intent to defraud H. K. Wade. On this case of evidence to show any liability a trial upon the second indictment the eviupon the part of the railroad company, where- dence tended to show that defendant had fore the judgment is reversed, and the cause gotten possession of the check of Funsten & is dismissed.

Co., which was made payable to W. H.

Peters; that he forged the indorsement, "W. The Honorable CARROLL D. WOOD, be- H. Peters," on the back of the check, and ing disqualified, did not participate in the

induced H. K. Wade to cash the same for determination of this cause.

him, and thus cheated Wade out of that sum of money. Defendant was convicted, and sentenced to two years in the state peni

tentiary. STAFFORD v. STATE.

It is contended by appellant that the two

indictments were for different offenses, and! (Supreme Court of Arkansas. July 14, 1894.)

that over three years having elapsed from LIMITATION-CRIMINAL Cases-INDICTMENT PEND

the date the crime is said to have been An indictment charging that defendant

committed before the finding of the last inforged a writing purporting to be a check of F. dictment, upon which appellant was convict& Co. for $39.67, payable to and indorsed by ed, the offense was barred by our statute of P., with intent to defraud P. and F. & Co., limitations. A similar question came before was nolled, and a new indictment found, setting out the same check, but alleging that

this court in the case of Lay v. State, 42 defendant forged the indorsement with intent Ark. 108. The facts were that Lay was to defraud W. It appeared that defendant got first indicted for an assault upon John W. possession of a genuine check of F. & Co. to P., forged P.'s indorsement, and got W. to

Sivils with a gun, with the intent to kill him. cash the check. Held, that the same forgery

Afterwards, this indictment was non pross'd. was charged in both indictments, within the and a new indictment returned by the grand provision of Mansf. Dig. $ 1991, that when an in

jury. The second indictment charged that dictment is set aside the time it was pending shall not be computed in the limitation period.

one Neal made the assault upon Sivils, and Bunn, C. J., and Battle, J., dissenting.

that Lay was an accessory before the fact. Appeal from circuit court, Washington

It was contended that the two indictments

were for separate offenses, and that the last county; Edwin S. McDaniel, Judge. Houston Stafford, convicted of forgery, ap

indictment, upon which Lay was tried and

convicted, was barred by the statute of limpeals. Affirmed.

itations. But the court held that the time Thomas M. Gunter, for appellant. James during which the first indictment was. pendP. Clarke, Atty. Gen., and Chas. T. Cole

ing was properly counted out, and that the man, for the State.

last indictment was not barred. Chief Jus

tice English, who delivered the opinion of RIDDICK, J. The appellant, Houston the court, said that “the offense charged in Stafford, was on the 6th day of May, 1892, the indictment was the same, but the agency indicted by the grand jury of Washington of appellant in the crime was not charged county for the crime of forgery. The in- in the second as in the first indictment." dictment charged, in substance: That he In the case at bar it is conceded that the forged a certain instrument of writing, which appellant committed only one forgery. By purported to be a check or order of Funsten that means he wrongfully procured a certain & Co. for $39.67, in words and figures as fol- sum of money. It was for this forgery he lows, to wit:

was prosecuted. By some inadvertence or

I.XG.

non

oversight of the prosecuting attorney, the Action by C. D. Perry against the Vissouri, first indictment charged him with having Kansas & Texas Railway Company. There forged a check indorsed "W. H. Peters," was a judgment for plaintiff, and defendant with the intent to cheat Funsten & Co. and appeals. Reversed. W. H. Peters. This indictment was pross'd, and the second indictment set out

Dillard & Muse, for appellant. Yoakum the same check, and alleged that he forged

& Looney, for appellee. the indorsement of W. H. Peters upon it with intent to cheat H. K. Wade. Section PINLEY, J. Appellee purchased a ticket 1991, Mansf. Dig., provides that "when any over appellant's road from Lona Oak, in indictment or prosecution shall be quashed, Hunt county, to Emory, in Rains county, set aside or reversed, the time during which and took passage on the train. When the the same was pending shall not be computed train reached Emory, which was in the nightas part of the time of the limitation pre- time, the name of the station was announced scribed for the offense." Both of the indict- | in the usual manner, and the train was ments against appellant were based on the stopped a sufficient length of time for passame transaction, and in each case the state sengers to get off and on the cars. The facts, was prosecuting him for the same forgery. as far as stated, are unquestioned. AppelThe circuit court, in our opinion, correctly lee's evidence tends to show that he was held that the time during which the first asleep, and did not hear the announcement indictment was pending should not be com- of the station; that just after the train startputed as part of the time of the limitationed, a negro man, dressed in train uniform, prescribed for the offense. In charging the with lantern in band, came through the car, jury on this point the court said, “The jury and aroused appellee, and told him that they are not to compute, as part of the three were at Emory; that appellee followed him years, any time during which a former in- to the platform, and was told by the traindictment for forgery was pending against man that the train had just started, and that him in the court.” We agree with counsel he did not think there was any danger in for appellant that only an indictment for his getting off, Appellee, acting on this adthe same forgery will prevent the running vice, attempted to get off, and was seriously of the statute, but as the evidence shows that injured. Just how the injury was inflicted the former indictment was for the same does not appear. It does appear that he fell, forgery, and no indictment for a different and a car wheel ran over his arm, cutting forgery is referred to in the evidence, we it off. On the trial of the cause the jury re. think that this is what the court meant, and turned a verdict for $9,000. $4,500 was rethat the jury could not have been misled, mitted by appellee in the court below pendor appellant prejudiced, by this instruction. ing the consideration of the motion for new

The testimony of H. K. Wade and other trial, and judgment final was entered for witnesses was sufficient to support the ver- $4,500, from which this appeal was taken. dict of the jury, and as we find no preju- Appellant excepted to the action of the dicial error the judgment of the circuit court court in permitting and approving the filis affirmed.

ing of the remittitur. In approving the bill

of exceptions the judge makes this explaHUGHES and WOOD, JJ., concur in this nation: “I did not suggest to counsel that opinion. BUNN, C. J., and BATTLE, J., dis- a remittitur should be filed, and did not say sent,

that I would overrule the motion if a remit. titur was

filed. I was explaining by calculation that plaintiff's

ca

pacity to earn was lessened, so that, estimat. MISSOURI, K. & T. RY. CO. v. PERRY.

ing his period of expectancy at eighteen (Court of Civil Appeals of Texas. June 27, years, his damages in that regard would be 1894.)

from $2,750 to $3,600. I then proceeded, and New TRIAL-Filing REMITTITUR-INJURY TO PAS- was intimating what would be a fair com

pensation for his mental and physical suffer1. In an action for personal injuries, plain

ing, the tenor of my remarks indicating that tiff, pending a motion by defendant for a new trial, being actuated by remarks of the trial

I regarded a verdict for over $5,000 excesscourt that he regarded the verdict excessive, ive, and plaintiff's counsel voluntarily, and cannot file a remittitur so as to cure the defect. without suggestion from me, filed a remit

2. Where a passenger on a train, who has been carried beyond his place of destination

titur, remitting half of the verdict. I had not by reason of his being asleep, unknown to the ruled on the motion, and had not said how I carrier, when notice of the place was given, would rule, but it was apparent to counsel and the train stopped, is injured by his jump that I regarded the verdict as excessive." It ing from the train while it is in motion, being advised by a brakeman that it was not danger is quite clear to our minds that the trial ous to do so, the carrier is not liable, as the judge regarded the verdict for $9,000 as exgiving of such advice is not a duty delegated to cessive, and, so regarding the verdict, he brakemen.

would have doubtless done his duty and Appeal from district court, Rains county; granted a new trial, but for the entering of 8. W. Terhune, Judge.

the remittitur. It is equally clear that ap

SENGER.

pellee's counsel understood the views of the contracted for carriage, when reasonable nojudge as to the verdict, and filed the remitti- tice has been given, and reasonably safe tur to meet the difficulty, cure the error, and means and opportunity afforded him for the obtain favorable action on the motion for purpose. The obligation does not rest upon new trial. There is no statutory authority the carrier to put the passenger off the in our trial courts to receive a remittitur to train; nor does the law impose upon the carcure the error of excessiveness in a verdict rier the duty of taking notice that the paswhere the excess is not ascertainable by any senger has fallen asleep, and cause him to be rules of law on certain fixed methods of cal- aroused. It is ordinarily the duty of the culation; and the decisions of our supreme passenger to use his senses, and take notice court have condemned the practice as er- of the usual announcement of stations; and roneous. Thomas v. Womack, 13 Tex. 584; if, by reason of being asleep, unknown to the Railway Co. v. Coon, 69 Tex. 730, 7 S. W. carrier, he fails to hear the notice given of 492; Nunnally v. Taliaferro, 82 Tex. 289, 18 the arrival of the train at his place of destiS. W. 149; Railroad Co. v. Wilkes, 68 Tex. nation, and remains on the train, and is 617, 5 S. W. 491. Had the remittitur pot carried beyond, the fault is his, and the been in response to the views of the trial carrier is not liable therefor. The carrier no judge that the verdict was excessive, but longer owes him any contract duty; the repurely voluntary on the part of appellee, an lations of the parties have changed, and the entirely different question would be present- grounds of liability become different. If, by ed for our consideration. It is fairly manifest his own fault and negligence, the passenger from the language of the trial judge qualify- is carried beyond his place of destination, ing the bill of exceptions that he let counsel and he attempts to get off the train while it for appellee understand that he considered is in motion, without being compelled to do the verdict excessive. He might as well, so by the carrier, he assumes the risk of such as far as effect be concerned, have told coun- act, and cannot recover for consequent insel that he considered the motion for new juries. The contract of carriage having tertrial, based upon excessiveness of the ver- minated, and the person being upon the train dict, as well grounded, and then received the through his own fault, the company could remittitur as curing the error. If the views become liable only through failure of its serv. of the trial court as to excessive verdict had ants to exercise ordinary care against innot been made to appear, then the question flicting injury upon him. The advice of a of excessiveness of the verdict as originally porter or brakeman to such person that it rendered would be addressed to this court. would not be dangerous to get off a movAs the matter is presented to us, that ques- ing train cannot be considered as the distion is not involved, and we express no opin- charge of a delegated duty, for no such oh). ion upon it.

ligation rested upon the carrier. Liability is It is urged by appellant that, when a pas- imposed upon the carrier for only such acts senger is asleep, and fails to get off the train of the servant or employé as are within the at the place of destination, the station hay. scope of his employment, and which, for that ing been announced, and the train stopped reason, are treated as the acts of the master. a reasonably sufficient time for the purpose, Railway Co. v. James, 82 Tex. 306, 18 S. W. he cannot recover for injuries received in 589; Conwill v. Railway Co., 85 Tex. 97, 19 getting off the train while in motion, unless S. W. 1017. The judgment of the court behe was forced to do so by the carrier. This

low is reversed. and the cause remanded. point is raised in objections to the main charge, refusal of special charges, and overruling the motion for new trial. It is not necessary that we should consider these as

RASH v. DILLON et al. signments separately, but we will sufficiently indicate our views upon the question to guide

(Court of Civil Appeals of Texas. June 6, the trial court upon another trial. Under

1894.) the contract of carriage the law implies cer- TROVER AND CONVERSION-EviDENCE. tain obligations resting upon the carrier, and

Where, in an action for the conversion of certain reciprocal duties devolving upon the a note, the complaint alleges that after the note passenger. The carrier undertakes to trans.

was given to defendant, to secure him as in

dorser on another note, plaintiff purchased the port the passenger safely from the initial

note, and defendant promised to deliver it to point of transportation to the place of desti- him when the other note was paid, the paypation, to give reasonably sufficient notice of

ment of the other note is a condition precedent stations, and to afford a reasonable oppor

to the right of plaintiff to recover, and the bur

den of proving the same is on him. tunity for the passenger to disembark from the train. When the carrier has performed Appeal from Hopkins county court; J. M. these obligations, its duties and responsibili- Morris, Judge. ties under the contract of carriage cease, and

Action by Elizabeth Dillon and another it does not thereafter sustain any contractual against Will Rash. There was a judgment relation to the person it has carried. The re- for plaintiffs, and defendant appeals. ciprocal duty rests upon the passenger to rehearing. No original opinion filed. Reget off the train at the place to which he has versed.

v.27s.w.no.6–32

On

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