99 Ark. 233 | Ark. | 1911
(after stating the facts). It is contended ¡that the complaint is insufficient because it does not allege that the auditor was acting within the scope of his authority.
It alleges that appellant was a passenger upon appellee's train, having purchased a ticket from Stamps, Arkansas, to Sibley, Louisiana, and that upon reaching Minden, Louisiana, the auditor in charge of the train wrongfully and falsely accused appellant of larceny, and wrongfully, maliciously and falsely and without reasonable cause caused the appellant to be arrested and removed from the train and imprisoned, that he was entirely innocent of the charge of larceny and, following other allegations of his arrest and the taking of the property from him and his public humiliation, his liberation without any charge being preferred against him in court, that he lost his train and was compelled to hire a conveyance to complete his journey to his destination, Sibley.
The complaint sufficiently alleges a violation of the contract of carriage by the railway company and its duty to him as a passenger, and it was not necessary to state that the .auditor who was alleged to be in charge of the train was acting within the scope of his authority in causing his wrongful arrest and removal from the train. A carrier of passengers is an insurer of the safety of the passenger against wilful assaults by, and intentional ill treatment from, its servants .and agents in charge of the train, as the auditor was alleged, and by the demurrer admitted, to be.
It is so responsible for such conduct upon the part of any servant, whether in charge of the train or not, the performance of whose duties relate to the comfort or safety 5f the passengers and furnish opportunity or require him to come in personal contact with them. St. Louis, I. M. & S. Ry. Co. v. Dowgiallo, 82 Ark. 289; St. Louis & S. F. R. Co. v. Kilpatrick, 67 Ark. 47; Baumstein v. N. Y. City Ry., 107 N. Y. Sup. 23; Zeccarde v. Yonkers R. Co., 83 N. E. 31; White’s Personal Injuries on Railroads, vol 2, § § 728, 737.
In Mayfield v. St. Louis, I. M. & S. Ry. Co., 97 Ark. 24, after defining the duty of the carrier to protect its passengers from assault and injury during the performance of the contract of carriage, the court said: "It is therefore liable for .any wrongful arrest of a passenger made or procured by its servants in charge of the train; and it is also liable for an illegal arrest of the passenger made by others which in the exercise of due diligence it could have prevented.” (Citing authorities.)
The complaint is sufficient, and the court erred in sustaining the demurrer, and the judgment .is reversed, and the cause remanded with directions to overrule it and for further proceedings according to law.
