Wood, J.,
(after stating the facts.) Appellant contends that the fiction is barred under section 5065 of Kirby’s Digest, which provides: “All actions for criminal assaults and battery and false imprisonment shall be commenced within one year after the cause of action shall accrue, and not after.”
Clint (Ruff was killed on the 12th of September, 1908, and the suit was instituted on June 1, 1911. The complaint alleged that Ruff was a passenger, and that his death was caused by the wilful, malicious and negligent conduct of appellant’s servant in assaulting Ruff and knocking him from the train into the water, “where, after lingering for sometime in great mental anguish and bodily suffering, he died.”
At the common law such an action, if proved, would have been an action on the case. A wrongful act committed by a defendant’s servant in the line of his duty, although without the order or consent,of his principal, would render the latter liable, and at common law constituted an action on the case. St. Louis, I. M. & S. Ry. Co. v. Mynott, 83 Ark. 6.
This court held in Emrich v. Little Rock Traction & Elec. Co., 71 Ark. 71, that the limitation of three years applies to all actions on the case except for criminal conversation and for assault and battery and false imprisonment.
Such actions as the one alleged in appellee’s complaint may be brought “in the same manner and with like effect in all respects as actions founded on contract.” Kirby’s Digest, § 6285. It is not an action for assault and battery under section 5065 of Kirby’s Digest, but rather an action brought by the administrator of Clint Ruff for the benefit of his estate under section 6285 of Kirby’s Digest. Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215. See also Ward v. Blackwood, 41 Ark. 295.
A railway company, being a corporation, can not itself be guilty of an assault and battery, but it may be liable under section 6285 of Kirby’s Digest for an assault and battery committed by its servants in the course of their employment, although such tortious act on the part of the servant may not be authorized in the first place or afterwards ratified by the company.
Even though the relation of passenger and carrier may not have existed between Ruff and the appellant company at the time Ruff was expelled from the train, yet it was clearly in the line of the conductor’s duty to expel him, conceding that he was a trespasser, and if in so doing the appellant’s servant used more force than was necessary and acted from a malicious or vindictive motive, then appellant would be liable for the injury and resultant damage to Ruff, provided there was conscious suffering between the time of his injury and his death. Even though Ruff was a trespasser, appellant would be liable for the wrongful act of its servants in unnecessarily and wantonly inflicting injury upon his person. Railway Co. v. Hackett, 58 Ark. 381; St. Louis, I. M. & S. Ry. Co. v. Grant, 75 Ark. 579; St. Louis, I. M. & S. Ry. Co. v. Pell, 89 Ark. 87.
It is immaterial whether the relation of passenger and carrier existed or not; the cause of action was complete for the alleged wrong to the person of Ruff done by the servant of the company while acting in the discharge of his duty, and, as we have said, is covered by section 6285 of Kirby’s Digest. The right of action in the administrator for the benefit of the estate and the liability against the company is created by the statute, section 6285 supra. See Davis v. Railway, 53 Ark. 117; Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215. This is not a suit for the benefit of the widow and next of kin, and does not come under section 6289 and 6290 of Kirby’s Digest.
2. The jury were warranted in finding that the conductor of appellant “shoved” Ruff into the' water, and that from the time that Ruff fell into the water till his death there was an interval of possibly two or three minutes of conscious pain and suffering; for the witness testified that Ruff “was drowned, and that he was possibly conscious for two or three minutes.”
Under süch circumstances the finding that the pain and suffering were not merely incidental to the death, and that death from the injury was not instantaneous, is fully sustained. No one can conceive what awful agonies must have been endured by Ruff if he was conscious that death would be the inevitable result of his falling into the lake. The jury were justified in concluding that Ruff, during his fall and after he struck the water, was conscious, and that from that time until his death he endured pain.
In the case of St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. 1, we held that a verdict of $4,000 was excessive “because no appreciable interval of conscious suffering was proved.” But in that case the court announced the rule above that where the deceased, “as a result of the injury underwent conscious pain and suffering,” the administrator of his estate might recover damages for the benefit thereof. See, also, Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215.
In the case of St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241, where the decedent was knocked from a bridge into the river and drowned, this court sustained a judgment in favor of the administrator for the benefit of the estate for $500. This case on the point under consideration can not be distinguished in principle from that.
3. It is within the province of the jury, after hearing the evidence, to “assess a sum which in their judgment they deem a reasonable compensation, having regard for the severity and duration of the pain and suffering. The jury, in such cases, are given great latitude, for courts do not undertake to measure pain and suffering; but their judgment is not altogether uncontrolled.” St. Louis, I. M. & S. Ry. Co. v. Dawson, supra.
As was said in Aluminum Co. of N. A. v. Ramsey, 89 Ark. 522: “It has been frequently said that it is difficult to find a measure of damages for pain for the obvious reason that none would be an acceptable inducement to suffer it; but when it has occurred, the compensation as such must be considered upon a reasonable basis of estimate.”
Applying this rule, while one thousand dollars would seem to be the utmost limit for pain and suffering for so short an interval, yet we are not able to see that the verdict for that sum is excessive.
4.
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Wood, J.,
(after stating the facts.) Appellant contends that the fiction is barred under section 5065 of Kirby’s Digest, which provides: “All actions for criminal assaults and battery and false imprisonment shall be commenced within one year after the cause of action shall accrue, and not after.”
Clint (Ruff was killed on the 12th of September, 1908, and the suit was instituted on June 1, 1911. The complaint alleged that Ruff was a passenger, and that his death was caused by the wilful, malicious and negligent conduct of appellant’s servant in assaulting Ruff and knocking him from the train into the water, “where, after lingering for sometime in great mental anguish and bodily suffering, he died.”
At the common law such an action, if proved, would have been an action on the case. A wrongful act committed by a defendant’s servant in the line of his duty, although without the order or consent,of his principal, would render the latter liable, and at common law constituted an action on the case. St. Louis, I. M. & S. Ry. Co. v. Mynott, 83 Ark. 6.
This court held in Emrich v. Little Rock Traction & Elec. Co., 71 Ark. 71, that the limitation of three years applies to all actions on the case except for criminal conversation and for assault and battery and false imprisonment.
Such actions as the one alleged in appellee’s complaint may be brought “in the same manner and with like effect in all respects as actions founded on contract.” Kirby’s Digest, § 6285. It is not an action for assault and battery under section 5065 of Kirby’s Digest, but rather an action brought by the administrator of Clint Ruff for the benefit of his estate under section 6285 of Kirby’s Digest. Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215. See also Ward v. Blackwood, 41 Ark. 295.
A railway company, being a corporation, can not itself be guilty of an assault and battery, but it may be liable under section 6285 of Kirby’s Digest for an assault and battery committed by its servants in the course of their employment, although such tortious act on the part of the servant may not be authorized in the first place or afterwards ratified by the company.
Even though the relation of passenger and carrier may not have existed between Ruff and the appellant company at the time Ruff was expelled from the train, yet it was clearly in the line of the conductor’s duty to expel him, conceding that he was a trespasser, and if in so doing the appellant’s servant used more force than was necessary and acted from a malicious or vindictive motive, then appellant would be liable for the injury and resultant damage to Ruff, provided there was conscious suffering between the time of his injury and his death. Even though Ruff was a trespasser, appellant would be liable for the wrongful act of its servants in unnecessarily and wantonly inflicting injury upon his person. Railway Co. v. Hackett, 58 Ark. 381; St. Louis, I. M. & S. Ry. Co. v. Grant, 75 Ark. 579; St. Louis, I. M. & S. Ry. Co. v. Pell, 89 Ark. 87.
It is immaterial whether the relation of passenger and carrier existed or not; the cause of action was complete for the alleged wrong to the person of Ruff done by the servant of the company while acting in the discharge of his duty, and, as we have said, is covered by section 6285 of Kirby’s Digest. The right of action in the administrator for the benefit of the estate and the liability against the company is created by the statute, section 6285 supra. See Davis v. Railway, 53 Ark. 117; Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215. This is not a suit for the benefit of the widow and next of kin, and does not come under section 6289 and 6290 of Kirby’s Digest.
2. The jury were warranted in finding that the conductor of appellant “shoved” Ruff into the' water, and that from the time that Ruff fell into the water till his death there was an interval of possibly two or three minutes of conscious pain and suffering; for the witness testified that Ruff “was drowned, and that he was possibly conscious for two or three minutes.”
Under süch circumstances the finding that the pain and suffering were not merely incidental to the death, and that death from the injury was not instantaneous, is fully sustained. No one can conceive what awful agonies must have been endured by Ruff if he was conscious that death would be the inevitable result of his falling into the lake. The jury were justified in concluding that Ruff, during his fall and after he struck the water, was conscious, and that from that time until his death he endured pain.
In the case of St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. 1, we held that a verdict of $4,000 was excessive “because no appreciable interval of conscious suffering was proved.” But in that case the court announced the rule above that where the deceased, “as a result of the injury underwent conscious pain and suffering,” the administrator of his estate might recover damages for the benefit thereof. See, also, Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215.
In the case of St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241, where the decedent was knocked from a bridge into the river and drowned, this court sustained a judgment in favor of the administrator for the benefit of the estate for $500. This case on the point under consideration can not be distinguished in principle from that.
3. It is within the province of the jury, after hearing the evidence, to “assess a sum which in their judgment they deem a reasonable compensation, having regard for the severity and duration of the pain and suffering. The jury, in such cases, are given great latitude, for courts do not undertake to measure pain and suffering; but their judgment is not altogether uncontrolled.” St. Louis, I. M. & S. Ry. Co. v. Dawson, supra.
As was said in Aluminum Co. of N. A. v. Ramsey, 89 Ark. 522: “It has been frequently said that it is difficult to find a measure of damages for pain for the obvious reason that none would be an acceptable inducement to suffer it; but when it has occurred, the compensation as such must be considered upon a reasonable basis of estimate.”
Applying this rule, while one thousand dollars would seem to be the utmost limit for pain and suffering for so short an interval, yet we are not able to see that the verdict for that sum is excessive.
4. The appellant complains of the following instruction: “Notwithstanding the evidence shows that deceased had no right upon the train in question, and was a trespasser, defendant’s conductor in charge thereof had no right to eject him at a place nor in a manner which would subject him to great bodily harm or imminent danger of death; and, if the conductor attemped to do this, deceased had a right to resist such effort and to use any means necessary to prevent such expulsion; and if you further find from the evidence that the conductor, in order to overcome such lawful resistance upon the part of deceased, pushed or shoved him or caused him to fall from the moving train at such dangerous place, thereby causing his death, your verdict should be for plaintiff; and if you further find that the conductor so acted wilfully, wantonly and maliciously, or with conscious indifference to consequences from which malice will be inferred, you may, in addition to actual damages, if any, assess against defendant punitive damages in such sum as you may believe commensurate with the wrong done, as shown by the evidence.”
There was evidence to warrant this instruction. Although a conductor may forcibly eject a trespasser from his train where it is necessary to use force to accomplish the purpose, more force must not be used than is necessary. The right to eject does not give the conductor the right to subject the trespasser to great bodily danger or death in expelling him unless the trespasser, by the character and manner of his resistance, has made a resort to such violence on the part of the conductor necessary.
The evidence tended to show that the train was moving from four to ten miles an hour when the conductor informed Ruff that he could not ride, and that he must get off. When Ruff insisted on riding, the conductor, instead of stopping the train and expelling Ruff at a place that was not dangerous, attempted to remove him while the train was running, and at a place where the evidence tended to prove that any one “attempting to get off the step of the caboose would fall into a ditch.” Ruff was already inside the caboose when the conductor told him to debark, and the jury might have found that the train was running, at this time, about ten miles an hour. The evidence does not show that the conductor proposed or made any attempt to stop his train in order to eject Ruff. The jury were warranted in finding that the conductor, by attempting to eject Ruff where he did, subjected the latter to danger of death or great bodily harm, and that Ruff in drawing or attempting to draw his pistol was resisting this unlawful manner of expulsion. A witness testified that, “after the conductor shoved Ruff off of the bridge, he heard the conductor say: T guess that will teach the son-of-a-bitch a lesson.’”
It occurs to us that the jury were warranted in finding that there was no necessity for the unusual violence resorted to by the conductor on this occasion. He at least should have attempted to first remove the young man without subjecting him to any violence or any danger. This the jury might have found he did not do, but, on the contrary, that he first unnecessarily resorted to force himself, and displayed, in the manner and means adopted by him, a malicious and vindictive spirit and a reckless disregard of the consequences of his ill-temper and rash and violent conduct. Under such circumstances a verdict for punitive damages in the sum of $2,000 will not be disturbed.
The judgment is affirmed.