St. Louis, Iron Mountain & Southern Railway Co. v. Wilson , 70 Ark. 136 ( 1902 )

Wood) J.,

(after stating the facts.) We will consider the questions in the order presented by appellant’s counsel.

1. ’ It is contended that the cause should be reversed, because the jury failed to' observe the rule of preponderance of the testimony'. When the cause reaches this forum, it is no longer •a question of preponderance, but only of the legal sufficiency, of the evidence to support the verdict. St. Louis & S. F. R. Co. v. Kilpatrick, 67 Ark. 47; Cattett v. Railway Co., 57 Ark. 461.

2. Appellant objects to the following instruction: “If plaintiff went to defendant’s depot on the day mentioned in the complaint, to take passage on defendant’s train, and at that time the weather was such as to require a fire in the waiting room to make it comfortable, it was defendant’s duty to build and keep a fire in said waiting room; and, if it failed to do so, and plaintiff suffered in consequence of defendant’s failure to build and keep such fire, your verdict will be for .the plaintiff.” It was the duty of railroads, independent of the statute of March 31, 1899, to provide reasonable accommodations for passengers at their stations. McDonald v. Chicago & N. W. R. Co., 26 Ia. 138. This duty requires the exercise of ordinary care to see that station houses are provided with reasonable appointments for the safety and essential comfort of passengers, or those intending to become passengers, while they are waiting for trains. Caterham Ry. Co. v. London, B. & S. C. Ry. Co., 87 E. C. L. 410; 1 Fetter, Car. Pas. §§ 249, 250; Texas & P. Py. Co. v. Cornelius, 30 S. W. 720; Hutch. Car. §§ 516-521, inclusive; 2 Wood, Railroads, § 1338; Elliott, Railroads, § 1590.

By the exercise of such care as ordinary prudence would suggest for reasonable comfort) it could hardly occur that a waiting-room, in midwinter, would be devoid of the means necessary to make it comfortably warm at the times when such rooms are needed to accommodate those intending to become passengers. A failure to provide such means is therefore at least prima facie evidence of negligence. It is insisted that the instruction “eliminated all question of diligence and negligence,” and made the company an “insurer -against the consequences of not having a fire in the waiting room.” But the company maintains that it was not negligent, because it built the fire in the waiting room as requested. It is not complaining of any latent defect or unforeseen exigency which ordinary care could not have anticipated and prevented. It could not have been prejudiced therefore by the instruction in the form given. Moreover, it did not request the court to declare the law to meet the objection it urges here to the instruction. Giving it as requested was not reversible error. St. Louis, I. M. & S. R. R. Co. v. Barnett, 65 Ark. 255.

3.' The court also gave the following: “If plaintiff went to defendant’s depot to take passage on defendant’s train, and defendant’s agent knowingly permitted it to be locked, or knowingly permitted it to remain locked after being notified that it was locked»so that plaintiff was restrained from going in and out, your verdict will be for the plaintiff.”

“A person,” says Mr. Wood, “who is in charge of a station by a railway company has apparently all the power and authority requisite to do and effectuate the business of the company at that station. He has control over the depot, and authority to exclude persons therefrom who persist in violating the reasonable regulations prescribed for their conduct.” 1 Wood, Railroads, § 165. The authority of railroads to make and carry into execution all reasonable regulations for the conduct of all persons resorting torts depots, so as to protect those who are, or intend to become, its passengers from unreasonable annoyances, insults and injuries cannot be questioned. 1 Fet. Car. Cas., § 247; Com. v. Power, 7 Met. 596, 41 Am. Dec. 465; Elliott, Railroads, § 303. This authority is the necessary correlate of the duty to provide reasonable accommodations; for a station house to which drunken, profane, obscene, abusive, riotous and otherwise disorderly persons could resort with impunity would not be either comfortable or safe. The willful or negligent failure of railroads to make and enforce such reasonable regulations would render them liable in damages for any injuries directly resultant to those who repaired to their stations for the purpose of becoming passengers.

If appellant’s station agent, against the protest of appellee, knowingly permitted the only means of ingress and egress to the waiting room, where appellee was properly in waiting to become its passenger, to be locked, and to be so continued for any length of time, when same by the exercise of ordinary care could have been prevented or discontinued, he was guilty of a tort, and for the wrong thus inflicted upon appellee appellant was liable in damages. For, in the unlawful imprisonment of the person of appellee and the deprivation of her personal liberty, even though for a moment, -without her consent, there was an actionable wrong, an injury to her person, however slight. Field, Dam. § 679; Cooley, Torts, p. 195. § 169; 3 Suth. Dam. § 1257.

Appellant does not contend that its agent exercised ordinary •care to prevent the locking of the door, or to have it unlocked after being notified. Its defense on this point is confined to a denial of all knowledge of any such occurrence. The instruction, in the form given, ivas therefore not prejudicial.

4. Appellant insists that the court erred in giving the following :

“(3). You are instructed that it is the duty of a railroad company to protect'all persons who are-at its stations for the purpose of taking passage on its trains from annoyances, insults and abuse; •and if defendant's agent used toward or about the plaintiff, or in plaintiff's hearing, any profane, obscene or boisterous language, which language insulted or injured plaintiff's feelings, your verdict ■should be for the plaintiff.

“(6). If you find for the plaintiff in this case, her actual damages will be such sum of money as will be a just and fair compensation for all the pain and anguish, if any, both of body and mind, •suffered by plaintiff on account of the injuries received.

“(7). If you find for the plaintiff, you may, in addition to actual damages, award punitive damages as a punishment of the defendant." •

What ive have already said sufficiently indicates the duty of railroads to those intending to become passengers at their stations. While it is their duty to exercise ordinary care to protect them from unreasonable annoyances, and from insults and injuries, from turbulent, riotous or disorderly persons, yet to make them liable in damages it must be shoAvn that there Avas an injury, that the agent in charge of the station “had knowledge or opportunity to know that the injury was threatened, and that by his prompt intervention he could have prevented or mitigated it.” Sira v. Wabash R. Co., 115 Mo. 127, 21 S. W. 905, 37 Am. St. Rep. 386; Spohn v. Mo. Pac. Ry. 87 Mo. 74, and authorities cited.

The duty of railroads in this respect is therefore not absolute, .as the first part of the third instruction assumes. This part of the instruction, however, could not be said to be prejudicial, for the latter part limits the application of the doctrine to “profane,” “obscene,” or boisterous language used only by appellant’s agent. But the latter part of the instruction is abstract, erroneous and prejudicial. We have searched the record in vain for evidence that appellant’s agent used profane, obscene or boisterous language toward or about appellee. The only evidence in the record of any improper language used by the agent at all was that' he “began to swear a little at Dick,” the boy who requested him to make a fire. Dick Canady, the boy who requested the agent to make a fire, said the agent “cussed,” and told him to go on. There is no proof that he cursed appellee, or that what he said to Dick Canady in her hearing was calculated to and did insult her feelings. There is no proof of what the language was. It is not shown to have been said for the purpose of insulting appellee. As the language was not addressed to appellee, in the absence of any evidence as to what the language ivas, the inference that it was said for the purpose of insulting appellee is not warranted. There is no proof of any connection between the cursing and the acts resulting in physical injury to appellee. Whether the use of profane, obscene and abusive language by station agents, when uttered about or in the presence and hearing of those intending to become passengers, while at stations, and for the purpose of insulting them, or injuring their feelings, would alone make the railroads liable for the mental suffering thereby produced, we need not decide; for that state of facts is not presented by the proof in this record.

It is certain there could be no recovery for mental anguish unaccompanied by personal injury, where there was no willful, wanton or malicious wrong done. Whether there could be recovery for mental suffering alone, where there was, willful, wanton, or malicious wrong done, ive reserve for decision.

5. The complaint alleges three separate grounds for recovery, to-wit, the failure to build a fire, the failure to prevent the locking of the door, and the failure to protect appellee from insulting remarks. The sixth instruction, on the measure of damages, allows the jury to find for all the pain and anguish of both body and mind, without discrimination or designation of the specific grounds upon which the cause of action is based. This instruction, in view of what we have just said in reference to the third, is erroneous; for under it, in connection with the third, supra, the jury were warranted in finding for mental suffering on account of profane, obscene and boisterous language of the station agent. The jury might have found such damages. Whether or not they did so, and, if so, what amount on this account entered into the verdict, it is impossible for us to tell. Tile instruction was erroneous and prejudicial.

6. It follows also that it was error to give the seventh as to punitive damages, since the jury may have included punitive damages in their verdict for the use of profane, obscene or boisterous language used by the station agent. Furthermore, under the proof it did not follow as matter of law that the jury might find punitive damages if they found for the appellee. The jury may have found that appellant was liable for compensatory damages on one of the alleged grounds of liability, but it did not follow that because they so found they should also find punitive damages on said ground, unless they should further find that the tort or wrong of the servant in the particular alleged was in the line of his employment, and was willful, wanton, or malicious. The instruction should have been framed so as to leave the jury to determine whether or not the elements -essential to punitive damages existed, in connection with any or all of the alleged grounds of liability set forth in the complaint for actual or compensatory damages. We find no other reversible error.

The other questions may not again arise. For the errors indicated, the judgment is reversed, and the 'cause is remanded for new trial.