Butler County Railroad v. Exum

Wood, J., (after stating the fácts). (1) Large discretion is vested in trial courts under our statute and decisions in the matter of permitting amendments to, pleadings. The ruling of a trial court in allowing amendments before the trial has commenced, and after it has begun and before it is ended, and even after the evidence has all been taken to conform to the proof, will be sustained unless there is a manifest abuse of discretion. American Bonding Co. v. Morris, 104 Ark. 276; Oakleaf Mill Co. v. Cooper, 103 Ark. 82; Rucker v. Martin, 94 Ark. 365; McFadden v. Stark, 58 Ark. 7. (2-3) Appellant could not have been surprised by the amendment. It was not inconsistent with the claim for damages set up in the complaint. The effect of the amendment was not to change the cause of action, but. only to supply the necessary allegation to support appellee’s prayer for damages for mental anguish. But even if appellant had been surprised it was its duty to have asked the court to suspend the trial or continue the case before it could complain. See St. Louis, I. M. & S. Ry. Co. v. Power, 67 Ark. 142. The appellant was not prejudiced by the court’s ruling. The only other ground urged for a reversal is that there was no evidence to sustain the verdict, _ The evidence was amply sufficient to sustain the verdict. (4) It appears from the testimony on behalf of the appellee that persons on the train and in the same coach with her were permitted to engage in a scene of drunken debauchery and ribaldry. They absolutely filled the car where appellee was riding with smoke, which gave her a headache and made her sick at the stomach. It was the duty of the conductor, when his attention was called to the intoxicated condition of these persons to have arrested them and handed them over to some peace officer at the first opportunity. Act 44, Acts of 1909, p. 99. The purpose of the above act, in making conductors peace officers and giving them power to arrest drunken persons on their trains, was to protect passengers from just such insults and indignities as is discovered by the testimony on behalf of appellee in this record. The jury accepted the testimony of appellee, thereby assuming that the testimony of appellee was true. (5) A verdict in the sum of $100 is but a moderate compensation for the outrageous treatment and the mental and physical suffering which she endured at the hands of drunken rowdies as the direct result of the negligence of appellant’s conductor in failing to do his duty under the circumstances. The judgment is therefore correct, and it is affirmed;