97 Ark. 505 | Ark. | 1911
Plaintiff embarked at Plummerville, Ark., as a passenger on one of appellant’s trains en route to Bragg, Oklahoma, and had a ticket which entitled her to ride on the train between those stations. According to the allegations of the complaint and testimony which she adduced at the trial, the train auditor wrongfully and forcibly ejected her from the train in the night before she reached her destination and about half a mile from Bluffs, Okla., another station. She testified that the auditor pitched her baggage off, and then, over her protest, seized her under the arms and set her off the train; that she screamed and asked where the depot was, and he replied, as the train moved on, that the depot was about two hundred yards back. She was alone, and her baggage was heavy. She attempted to carry it until she became exhausted, and set it down by the trade, and after search she found a house, and finally flagged a freight train, and was carried to her destination, reaching there about 11 o’clock in the night. In her search for a house at which to stay, and in getting back to the railroad after failing to get a place to stay, she had to. walk across fields, through brush and briars. She testified that she was humiliated and frightened at being put off in a strange place in the night, that she was physically exhausted by the exertion in carrying the heavy baggage, and that her condition became such that she did not sleep for several nights, and was unable to get out of her room for about two weeks.
It is insisted by counsel for defendant that the court erred in giving instructions which permitted plaintiff to recover damages for “humiliation and fright, anxiety and mental distress, which she suffered, if any, by reason of being ejected from said train and left alone,” and that the damages assessed were excessive on account of the jury being allowed to consider those elements. Counsel base their contention on the case of St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42. The doctrine of that case is stated in the following language, and does not reach to this case at all: “We prefer to adhere to the rule, as a sound one, that mental suffering alone, unaccompanied by physical injury or any other element of recoverable damages, can not be made the subject of an independent action for damages, even where the act- or violation of duty complained of was wilfully committed; and that such suffering does not of itself constitute a cause of action, but is merely an aggravation of damages when it naturally ensues from the act complained of.” Here there is an independent cause of action for the wrongful and forcible ejection. Little Rock & F. S. Ry. v. Dean, 43 Ark. 529; Hot Springs Rd. Co. v. Deloney, 65 Ark. 177; Little Rock Ry. & Elec. Co. v. Goerner, 80 Ark. 158; St. Louis S. W. Ry. Co. v. Furlow, 81 Ark. 496; St. Louis, I. M. & S. Ry. Co. v. Baty, 88 Ark. 282.
In St. Louis S. W. Ry. Co. v. Furlow, supra, we said: “The amount of damages for an injury involving humiliation and distress of mind resulting from a wrongful expulsion from a train, accompanied by harsh treatment, is indeterminate, and must be left, to some extent, to the sound discretion of the jury; and unless the assessment is palpably excessive, or so flagrantly unjust as to indicate passion, prejudice or a failure to appreciate the law and facts presented, this court will not disturb it.”
The evidence in the present case warranted a finding that the train auditor ejected plaintiff from the train with full knowledge of the fact that it was not her station, that it was not any station at all, and that there was an element of wilfulness and intentional wrong in his conduct. There is also evidence of physical suffering resulting directly from the wrongful expulsion of plaintiff with her baggage at a lonely place on the railroad where she could not procure shelter. She became physically exhausted in attempting to carry her baggage back to the place where the auditor told her she would find the depot, and in seeking to find a bouse where she could procure shelter and protection for the night. The jury had a right to consider these circumstances, and the mental as well as the physical suffering plaintiff endured, in estimating the amount of her damages.
Counsel for defendant do not argue the question of excessiveness of the damages except in connection with their contention that the court erred in submitting to the jury the element of mental pain and suffering.
The case was submitted- to the jury under proper instructions, and the evidence was sufficient to warrant a finding that the plaintiff was wrongfully ejected from the train without any fault on her part. The judgment is therefore affirmed.
