Action by Falls Bolling against the Houston, Central Arkansas & Northern Railway Company for injuries received while riding on a hand car. Judgment for plaintiff, and defendant appeals. Reversed.

The appellee, a boy about four years old, while riding on a hand car of appellant, had his hand crushed in the cogs by which it was operated, and for the injury recovered damages in this action in the sum of $5,000, to reverse the judgment for which the appeal in this case was taken. The facts in the case are substantially as follows: Parkdale is the center of a section of defendant's railway in Ashley county, Ark. The section was about six miles long, and Parkdale was situated about the center. At Parkdale was located the railway company's section house, at which the laborers and foreman resided. On March 29, 1892, one Bolling was foreman of that section (No. 6), and had charge of all the work thereon. He lived at the section house at Parkdale, with his wife and child. Falls Bolling, who was at that time about four years old, and who is the real plaintiff in this suit. On March 29, 1892, Section Foreman Bolling was very ill, and one Mike O'Connor, one of the regular section hands, was presumably acting as tem•porary foreman. The duties of these section hands were to keep the track of their section in repair, and do all things necessary to that end. Their working hours were from 7 o'clock a. m. to 6 o'clock p. m. each day, and, except in an emergency, the foreman and laborers were not required to be on the track outside of these hours. In order to enable this section crew to do its work, all the tools necessary were furnished them by the railway company, and among these tools was a hand car. This hand car was furnished them for the express purpose of transporting the section laborers, with the tools, implements, and materials, to and from the several places on the line of road within the section, wherever needed, and for no other purpose. Indeed, the rules and regulations of the defendant railway company forbade the section foreman or any one of the section men allowing any one to ride on the hand car except the laborers on the section. They were forbidden to use the hand car except in their work, and the proof shows that the hand car was never intended for, nor was it ever used for, the transportation of passengers. On the contrary, the use of the hand car was, for this purpose, positively and affirmatively prohibited. The section foreman and his men had absolutely nothing to do with the transportation of passengers. On the contrary, they were forbidden to do such work, or to carry passengers on the hand car or in any manner. The proof was clear and undisputed that Section Foreman Bolling had knowledge of these rules, and that he had repeatedly imparted his knowledge to O'Connor and his crew. On March 29, 1892, the section hands came

in early from work,-between 5 and 6 o'clock, -at the express orders of Bolling, for the purpose of taking two ladies on the hand car up to Mr. Kinnebrew's residence, which was about a quarter of a mile beyond the end of the section, and off of section 6. Kinnebrew was very ill. His wife desired Mrs. Meyer to come and sit up with her. Mrs. Meyer had asked Mrs. Maxwell to go with her, and Mrs. Maxwell had consented. So, in order to get to Kinnebrew's, these ladies asked either Mr. Bolling or his wife or both to let the section men carry them up to that point on the hand car. Mr. Bolling consented, and ordered the men to come in early from work, and carry the ladies to Kinnebrew's. One of the section men testified: "We were employed on that section (No. 6), and it was the duty of the hands on that section to see every part of the road on that section every day. When we got ready to start over the north end of the section, on said March 29, 1892, Falls Bolling, a child about 4 years old, began to cry, and wanted to go with us," etc. At 5:20 p. m. the section men quit work, and came into the section house. On their arrival, Mrs. Bolling, who knew the purpose for which they had come in so early, sent word to the ladies that the men had come, and would take them at once. In the meantime Falls Bolling, the child of Mrs. and Mr. Bolling, and plaintiff in this case, was standing near the hand car, crying to take a ride on it. Mike O'Connor-who, the testimony shows, was much attached to the child, and made a pet of it-asked its mother to let it go with them on the hand car, and Mrs. Bolling consented, saying, "Take good care of my boy, and bring him back safe." To this O'Connor replied, apparently in a joking manner, "Yes, we will bring him back safe, or we will bring him back a corpse." Upon this reply being made, Mrs. Bolling then told the men "to leave her boy alone, and not to take him." The men made no reply to this, but simply laughed. As to whether or not this conversation actually took place the proof was contradictory. After this conversation, Mrs. Meyer and Mrs. Maxwell (or about that time) arrived, and got upon the hand car, the plaintiff being taken charge of by Mrs. Maxwell, who held him in her arms while riding on the hand car up to Mr. Kinnebrew's. After Mrs. Maxwell, Mrs. Meyer, the plaintiff, Falls Bolling, and the crew had got themselves upon the hand car, they then proceeded up the road a distance of about 31⁄2 miles, to Kinnebrew's, and on arriving there the ladies got off the car, O'Connor going with them up to the house. After sitting for a while in social conversation with the ladies, O'Connor returned to the hand car, and started back to the section house. On its way back it overtook one Grant Johnson, a negro man, walking along the track. The hand crew. in the goodness of their heart, stopped it, and took Johnson aboard. Up to this time the child,

Falls Bolling, had been riding on the front of the car, and was safe and sound. But shortly after Johnson had boarded the car the little fellow commenced to grow sleepy, and began to nod. O'Connor and the crew observed this, and fearing the child might fall off the front of the car, O'Connor moved him back from the front to the side, close to the standards where the cog wheels work. The car continued on its journey, but shortly thereafter the boy fell asleep, and in some unexplainable manner got his hand caught in the cog wheel and crushed. In the court below it was contended by appellant that Mike O'Connor and his section men were acting wholly and entirely without the scope of their employment when they undertook to carry these ladies, the plaintiff, or the colored man upon the hand car; that it was not a part of defendant's duty to carry passengers, either for hire or for pleasure, upon hand cars; that such means for the transportation of passengers was unknown to defendant's system of business; that it was contrary to the usual mode of doing business upon this, as well as other, railroads; that the rules and regulations of the railway company forbade it; that no employé had authority, power, or right to involve the defendant in such a manner. Defendant further contended, and evidence was introduced to show, that the printed rules and regulations of the defendant company positively forbade the section foremen, or any and all of his section hands, from using the hand cars in their possession for any other purpose than doing work upon the road.

Dodge & Johnson, for appellant. Wells & Williamson and Dan W. Jones & McCain, for appellee.

In

HUGHES, J. (after stating the facts). Flower v. Railroad Co., 69 Pa. St. 210, the facts were as follows: A train of defendant's, coming into the city, the engine, tender, and one car were detached from the remainder, and were, under the charge of the fireman in the engineer's place, sent to a water station belonging to the defendants. At the station, the fireman asked a boy, 10 years old, standing there, to turn on the water. While he was climbing the tender to put in the hose, the remainder of the train came down with their ordinary force, and struck the car attached to the engine; the jar threw the boy under the wheels, and he was killed. In an action by the parents for his death it was held that, it not being in the scope of the engineer's or fireman's employment to ask any one to come on the engine, the defendants were not liable; that the boy, in climbing on the tender at the request of the fireman, did not come within the protection of the defendants, and they therefore owed no duty to him. The appeal in this case was before Justices Agnew, Sharswood, and Williams. Judge Agnew delivered the

case.

He said: "Whether

opinion of the court. the boy could be treated as a mere trespasser is scarcely the question. His youth might possibly excuse concurrent negligence, when there is clear negligence on the part of the company. The true point of this case is that, in climbing the side of the tender or engine at the request of the fireman, to perform the fireman's duty, the son of the plaintiffs did not come within the protection of the company. To recover, the company must have come under a duty to him, which made his protection necessary. Nor can the mere youth of the boy change the relations of the That might excuse him from concurring negligence, but cannot supply the place of negligence on the part of the company, or confer an authority on one who has none. It may excite our sympathy, but cannot create rights or duties which have no other foundation." In Eaton v. Railroad Co., 57 N. Y. 382, it is said that: "Railroad companies have the right to make a complete separation between their freight and passenger business. When this is done, the conductor of a freight train has such general authority only as is incidental to the business of moving freight, and no power whatever as to the transportation of passengers; and notice of this limited authority will be implied from the natural and apparent divisions of the business. *** In the great transactions of commercial corporations convenience requires a subdivision of their operations among many different agents. Each of these may have a distinct employment. and become a general agent in his particular department, with no powers beyond it." Page 389. In Stone v. Hills, 45 Conn. 47, it is said: "The rule is that for all acts done by a servant in obedience to the express or ders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express authority conferred upon him, considering the nature of the services required, the instructions given, and the circumstances under which the act is done, the master is responsible. For acts which are not in these conditions, the servant alone is responsible." In Storey v. Ashton, Cockburn, C. J., said: "We cannot adopt the view of Erskine, J., in Sleath y Wilson [9 Car. & P. 607], that it is because the master has intrusted the servant with the control of the horse and cart that the master is responsible. The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence in the course of his employment as servant. L. R. 4 Q. B. 476. Thus it will be seen that, in the absence of express orders to do an act, in order to render the master liable the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the employment." Wood, Mast. & Serv. 546. In

the case at bar the section foreman was not only not authorized, expressly or by implication, to permit persons to ride on the hand car, but had been expressly forbidden by the rules of the company and otherwise to permit it, and there was no custom to permit persons to ride on the hand car shown to have been known to or acquiesced in by the officers of the railroad company. "In order that the railroad company should be made responsible by reason of such a custom, it was necessary to show that it was actually known to the officials who conducted its business, or that it was so general, and of such long continuance, that it must be fairly inferred that it was known and assented to by them." Taunton v. Inhabitants of Ware ham, 153 Mass. 191, 26 N. E. 451. Such is not shown to have been the case here. The court deems it needless to set out or discuss the instructions. The court is therefore of the opinion that there is a total failure in this case of evidence to show any liability upon the part of the railroad company, wherefore the judgment is reversed, and the cause is dismissed.

The Honorable CARROLL D. WOOD, being disqualified, did not participate in the determination of this cause.

STAFFORD v. STATE. (Supreme Court of Arkansas. July 14, 1894.) LIMITATION-CRIMINAL CASES-INDICTMENT PEND

ING.

An indictment charging that defendant forged a writing_purporting to be a check of F. & Co. for $39.67, payable to and indorsed by P., with intent to defraud P. and F. & Co., was nolled, and a new indictment found, setting out the same check, but alleging that defendant forged the indorsement with intent to defraud W. It appeared that defendant got possession of a genuine check of F. & Co. to P., forged P.'s indorsement, and got W. to cash the check. Held, that the same forgery was charged in both indictments, within the provision of Mansf. Dig. § 1991, that when an indictment is set aside the time it was pending shall not be computed in the limitation period. Bunn, C. J., and Battle, J., dissenting.

Appeal from circuit court, Washington county; Edwin S. McDaniel, Judge.

Houston Stafford, convicted of forgery, appeals. Affirmed.

Thomas M. Gunter, for appellant. James P. Clarke, Atty. Gen., and Chas. T. Coleman, for the State.

RIDDICK, J. The appellant, Houston Stafford, was on the 6th day of May, 1892, indicted by the grand jury of Washington county for the crime of forgery. The indictment charged, in substance: That he forged a certain instrument of writing, which purported to be a check or order of Funsten & Co. for $39.67, in words and figures as follows, to wit:

"Funsten & Co., Commission. "$39.67. St. Louis, 30th Jan., 1890. "Pay to the order of W. H. Peters thirtynine & 67/100 dollars.

"Funsten & Co.

"Merchants' National Bank, St. Louis. "No. 41,383."

Indorsed on the back, "W. H. Peters." -That said forgery was made with the intent to cheat and defraud said W. H. Peters and Funsten & Co.

This indictment was pending against the defendant until October, 1893. The case was then resubmitted to the grand jury, and on October 30, 1893, another indictment for the same offense was returned against appellant. The second indictment set out the same check, but, instead of alleging that defendant forged the check, it alleged that he forged the indorsement of W. H. Peters upon said check, and that the forgery was committed with the intent to defraud H. K. Wade. On a trial upon the second indictment the evidence tended to show that defendant had gotten possession of the check of Funsten & Co., which was made payable to W. H. Peters; that he forged the indorsement, "W. H. Peters," on the back of the check, and induced H. K. Wade to cash the same for him, and thus cheated Wade out of that sum of money. Defendant was convicted, and sentenced to two years in the state penitentiary.

It is contended by appellant that the two indictments were for different offenses, and that over three years having elapsed from the date the crime is said to have been committed before the finding of the last indictment, upon which appellant was convicted, the offense was barred by our statute of limitations. A similar question came before this court in the case of Lay v. State, 42 Ark. 108. The facts were that Lay was first indicted for an assault upon John W. Sivils with a gun, with the intent to kill him. Afterwards, this indictment was non pross'd. and a new indictment returned by the grand jury. The second indictment charged that one Neal made the assault upon Sivils, and that Lay was an accessory before the fact. It was contended that the two indictments were for separate offenses, and that the last indictment, upon which Lay was tried and convicted, was barred by the statute of limitations. But the court held that the time during which the first indictment was pending was properly counted out, and that the last indictment was not barred. Chief Justice English, who delivered the opinion of the court, said that "the offense charged in the indictment was the same, but the agency of appellant in the crime was not charged in the second as in the first indictment." In the case at bar it is conceded that the appellant committed only one forgery. By that means he wrongfully procured a certain sum of money. It was for this forgery he was prosecuted. By some inadvertence or

oversight of the prosecuting attorney, the first indictment charged him with having forged a check indorsed "W. H. Peters," with the intent to cheat Funsten & Co. and W. H. Peters. This indictment was non pross'd, and the second indictment set out the same check, and alleged that he forged the indorsement of W. H. Peters upon it with intent to cheat H. K. Wade. Section 1991, Mansf. Dig., provides that "when any indictment or prosecution shall be quashed, set aside or reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense." Both of the indictments against appellant were based on the same transaction, and in each case the state was prosecuting him for the same forgery. The circuit court, in our opinion, correctly held that the time during which the first indictment was pending should not be computed as part of the time of the limitation prescribed for the offense. In charging the jury on this point the court said, "The jury are not to compute, as part of the three years, any time during which a former indictment for forgery was pending against him in the court." We agree with counsel for appellant that only an indictment for the same forgery will prevent the running of the statute, but as the evidence shows that the former indictment was for the same forgery, and no indictment for a different forgery is referred to in the evidence, we think that this is what the court meant, and that the jury could not have been misled, or appellant prejudiced, by this instruction.

The testimony of H. K. Wade and other witnesses was sufficient to support the verdict of the jury, and as we find no prejudicial error the judgment of the circuit court is affirmed.

HUGHES and WOOD, JJ., concur in this opinion. BUNN, C. J., and BATTLE, J., dissent.

MISSOURI, K. & T. RY. CO. v. PERRY. (Court of Civil Appeals of Texas. June 27, 1894.)

NEW TRIAL-FILING REMITTITUR-INJURY TO PAS

SENGER.

1. In an action for personal injuries, plaintiff, pending a motion by defendant for a new trial, being actuated by remarks of the trial court that he regarded the verdict excessive, cannot file a remittitur so as to cure the defect.

2. Where a passenger on a train, who has been carried beyond his place of destination by reason of his being asleep, unknown to the carrier, when notice of the place was given, and the train stopped, is injured by his jumping from the train while it is in motion, being advised by a brakeman that it was not dangerous to do so, the carrier is not liable, as the giving of such advice is not a duty delegated to brakemen.

Appeal from district court, Rains county; E. W. Terhune, Judge.

Action by C. D. Perry against the Missouri, Kansas & Texas Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Dillard & Muse, for appellant. Yoakum & Looney, for appellee.

FINLEY, J. Appellee purchased a ticket over appellant's road from Lone Oak, in Hunt county, to Emory, in Rains county, and took passage on the train. When the train reached Emory, which was in the nighttime, the name of the station was announced in the usual manner, and the train was stopped a sufficient length of time for passengers to get off and on the cars. The facts, as far as stated, are unquestioned. Appellee's evidence tends to show that he was asleep, and did not hear the announcement of the station; that just after the train started, a negro man, dressed in train uniform, with lantern in hand, came through the car, and aroused appellee, and told him that they were at Emory; that appellee followed him to the platform, and was told by the trainman that the train had just started, and that he did not think there was any danger in his getting off. Appellee, acting on this advice, attempted to get off, and was seriously injured. Just how the injury was inflicted does not appear. It does appear that he fell, and a car wheel ran over his arm, cutting it off. On the trial of the cause the jury returned a verdict for $9,000. $4,500 was remitted by appellee in the court below pending the consideration of the motion for new trial, and judgment final was entered for $4,500, from which this appeal was taken.

Appellant excepted to the action of the court in permitting and approving the filing of the remittitur. In approving the bill of exceptions the judge makes this explanation: "I did not suggest to counsel that a remittitur should be filed, and did not say that I would overrule the motion if a remittitur was filed. I was explaining

ca

by calculation that plaintiff's pacity to earn was lessened, so that, estimating his period of expectancy at eighteen years, his damages in that regard would be from $2,750 to $3,600. I then proceeded, and was intimating what would be a fair compensation for his mental and physical suffering, the tenor of my remarks indicating that I regarded a verdict for over $5,000 excessive, and plaintiff's counsel voluntarily, and without suggestion from me, filed a remittitur, remitting half of the verdict. I had not ruled on the motion, and had not said how I would rule, but it was apparent to counsel that I regarded the verdict as excessive." It is quite clear to our minds that the trial judge regarded the verdict for $9,000 as excessive, and, so regarding the verdict, he would have doubtless done his duty and granted a new trial, but for the entering of the remittitur. It is equally clear that ap

pellee's counsel understood the views of the judge as to the verdict, and filed the remittitur to meet the difficulty, cure the error, and obtain favorable action on the motion for new trial. There is no statutory authority in our trial courts to receive a remittitur to cure the error of excessiveness in a verdict where the excess is not ascertainable by any rules of law on certain fixed methods of calculation; and the decisions of our supreme court have condemned the practice as erroneous. Thomas v. Womack, 13 Tex. 584; Railway Co. v. Coon, 69 Tex. 730, 7 S. W. 492; Nunnally v. Taliaferro, 82 Tex. 289, 18 S. W. 149; Railroad Co. v. Wilkes, 68 Tex. 617, 5 S. W. 491. Had the remittitur not been in response to the views of the trial judge that the verdict was excessive, but purely voluntary on the part of appellee, an entirely different question would be presented for our consideration. It is fairly manifest from the language of the trial judge qualifying the bill of exceptions that he let counsel for appellee understand that he considered the verdict excessive. He might as well, as far as effect be concerned, have told counsel that he considered the motion for new trial, based upon excessiveness of the verdict, as well grounded, and then received the remittitur as curing the error. If the views of the trial court as to excessive verdict had not been made to appear, then the question of excessiveness of the verdict as originally rendered would be addressed to this court. As the matter is presented to us, that question is not involved, and we express no opinion upon it.

It is urged by appellant that, when a passenger is asleep, and fails to get off the train at the place of destination, the station having been announced, and the train stopped a reasonably sufficient time for the purpose, he cannot recover for injuries received in getting off the train while in motion, unless he was forced to do so by the carrier. This 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 assignments separately, but we will sufficiently Indicate our views upon the question to guide the trial court upon another trial. Under the contract of carriage the law implies certain obligations resting upon the carrier, and certain reciprocal duties devolving upon the passenger. The carrier undertakes to transport the passenger safely from the initial point of transportation to the place of destination, to give reasonably sufficient notice of stations, and to afford a reasonable opportunity for the passenger to disembark from the train. When the carrier has performed these obligations, its duties and responsibilities under the contract of carriage cease, and it does not thereafter sustain any contractual relation to the person it has carried. The reciprocal duty rests upon the passenger to get off the train at the place to which he has v.27s.w.no.6-32

contracted for carriage, when reasonable notice has been given, and reasonably safe means and opportunity afforded him for the purpose. The obligation does not rest upon the carrier to put the passenger off the train; nor does the law impose upon the carrier the duty of taking notice that the passenger has fallen asleep, and cause him to be aroused. It is ordinarily the duty of the passenger to use his senses, and take notice of the usual announcement of stations; and if, by reason of being asleep, unknown to the carrier, he fails to hear the notice given of the arrival of the train at his place of destination, and remains on the train, and is carried beyond, the fault is his, and the carrier is not liable therefor. The carrier no longer owes him any contract duty; the relations of the parties have changed, and the grounds of liability become different. If, by his own fault and negligence, the passenger is carried beyond his place of destination. and he attempts to get off the train while it is in motion, without being compelled to do so by the carrier, he assumes the risk of such act, and cannot recover for consequent injuries. The contract of carriage having terminated, and the person being upon the train through his own fault, the company could become liable only through failure of its servants to exercise ordinary care against inflicting injury upon him. The advice of a porter or brakeman to such person that it would not be dangerous to get off a moving train cannot be considered as the discharge of a delegated duty, for no such obligation rested upon the carrier. Liability is imposed upon the carrier for only such acts of the servant or employé as are within the scope of his employment, and which, for that reason, are treated as the acts of the master. Railway Co. v. James, 82 Tex. 306, 18 S. W. 589; Conwill v. Railway Co., 85 Tex. 97, 19 S. W. 1017. The judgment of the court below is reversed, and the cause remanded.

RASH v. DILLON et al.

(Court of Civil Appeals of Texas. June 6, 1894.)

TROVER AND CONVERSION-EVIDENCE.

Where, in an action for the conversion of a note, the complaint alleges that after the note was given to defendant, to secure him as indorser on another note, plaintiff purchased the note, and defendant promised to deliver it to him when the other note was paid, the payment of the other note is a condition precedent to the right of plaintiff to recover, and the burden of proving the same is on him.

Appeal from Hopkins county court; J. M. Morris, Judge.

Action by Elizabeth Dillon and another against Will Rash. There was a judgment for plaintiffs, and defendant appeals. rehearing. No original opinion filed. versed.

On

Re