111 Ark. 288 | Ark. | 1914
(after stating the facts). Appellee says the evidence here discloses that appellant’s employees were doubly negligent, first, in failing to exercise any care whatever to stop the difficulty, find, second, in failing to endeavor to stop the panic among the passengers and thereby preventing Mrs. Brown being pushed from its moving train. A citation of cases is unnecessary because the law of the case is not in dispute, for if there is any liability here it would be upon the theory that the employees of the carrier had, or should have had, knowledge of the impending trouble; or that after the trouble started they had the opportunity to prevent the injury to any passenger and failed to do so. It is contended that the recovery can be sustained on the last ground only.
But we do not think a recovery can be sustained upon that ground. Appellee argues that the absence of the auditor is not accounted for, and seeks to draw an inference from that fact that he might have done something to have avoided this injury. But it is certain that he was not in the car where the shooting occurred, and while it is probably true, as appellee contends, that the auditor jumped off the train, there is still no proof that he could have prevented the difficulty, had he remained on it. There can be no recovery because of any breach of duty on the part of the brakeman. He was in a different coach when the shooting commenced, and was walking toward the baggage car, and away from the combatants, when his attention was attracted by the first shot that was fired. He saw Mr. Lynch on the front platform of the chair car and saw that he was wounded and bleeding, and the thought which occurred to him was to assist Mr. Lynch and prevent his falling from off the train. But before this service could be rendered, Kennedy had fired again and Lynch himself had gotten ready for action and had re-entered the chair car. If there was any breach of duty upon the part of any of the employees of the appellant company, it was upon the part of the conductor, and the conductor, auditor and brakeman are the only employees of the appellant company who are alleged to have -had any duty to perform for the protection of the passengers in the train. Appellee states Ms position as follows: “It must have been apparent to the conductor that when the passengers were in a panic and running toward the rear end of a moving train, that some of them would either jump off in their excitement or be pushed off by others and injury result, and instead of conducting himself as one who had assumed the duties of a conductor of a railroad passenger train should have done, by endeavoring to have the passengers drop to the floor or behind the seats, he utters not one word of warning or advice and takes no steps whatever to quiet the excited passengers, or to stop the panic; but seems to have had but one thing on his mind and that was his own safety, as his action in dropping beMnd the seats clearly shows. ’ ’ And he further argues that “an ordinary man would have attempted to stop Kennedy. An ordinary man would have attempted to prevent the return of Lynch into the car. Absolutely no effort was made to do any of these three things. And, further, that the conductor should have grappled with Kennedy and called to his assistance the male passengers in the car, but this he did not do; but, like a hysterical woman, he hallóos ‘stop that’ or ‘cut it out,’ pulls the bell cord and Mdes behind the seats.” But it must be remembered that the conductor had no intimation that the difficulty would occur, and he was walking toward the rear end of the car when it occurred, and that if he had been unmindful of the safety of his passengers, as appellee says, he would have been the first to reach the rear of the car and safety, yet the proof was undisputed that he turned and walked toward Mr. Kennedy, who was advancing rapidly away from him, and that he called upon Kennedy to “cut that out.” It must also be remembered that this was no ordinary fisticuff, but that it was a duel to the death between two desperate men, and that it commenced without warning, and had ended while the train was running only a few hundred feet. Had the conductor attempted to pacify the passengers, by compelling them to remain in their seats, or to hide behind them, some passengers might have been killed by a stray bullet. Tbe conductor was called upon to act in a very unexpected emergency, and during a period of intense excitement. Every person wbo testified stated that tbe conductor followed after Kennedy, and commanded him to cease firing; but Kennedy was in no mood to be thus easily restrained. It is certain, too, that Mr. Lynch was not leaving the car to avoid the difficulty, but was only seeking an opportunity to bring his weapon into action, and, as soon as he had gotten his pistol so that it would shoot, he came back into the car and the duel to the death was fought, and Kennedy fell dead opposite the first seat. The evidence shows that Kennedy walked rapidly toward the front of the car, and, while it might have been possible for the conductor to have overtaken him, it is only a conjecture that he could have done' so, in view of the fact that passengers passed him in going to the rear of the train; at any rate, Mrs. Brown passed him in the aisle, if other passengers did not. He might have grappled with Kennedy, and have called upon the male passengers to come out from behind their seats and assist in restoring order, and they might have been encouraged by his coolness so to do, but, had this been done, we can only conjecture that Kennedy might have been subdued, and that Lynch might have been induced not to renew the shooting, when he got his own pistol in condition to fire. But we think this is a highly improbable view of this evidence. When this evidence has been analyzed, we think a recovery can be had only upon the theory that a passenger was injured, and that by some possibility something might have been done which was not done, but the evidence does not show what that was. We think the only reasonable view of this evidence is that there was nothing, which the members of this train crew could have done, which would have prevented this unfortunate occurrence, and as carriers are not absolute insurers of the safety of their passengers, the case must be reversed and the cause dismissed.