Kansas City Southern Ry. Co. v. Davis

• Decision Date: 17 June 1907
• Citation: 103 S.W. 603
• Parties: KANSAS CITY SOUTHERN RY. CO. v. DAVIS.
• Court: Arkansas Supreme Court

Page 603

103 S.W. 603

KANSAS CITY SOUTHERN RY. CO. v. DAVIS.

Supreme Court of Arkansas.

June 17, 1907.

Appeal from Circuit Court, Little River County; Jas. S. Steel, Judge.

Action by John Davis against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The third, fifth, sixth, seventh, and eighth instructions referred to in the opinion are as follows:

"(3) The court instructs the jury that railway carriers of passengers must be extremely careful not to mislead their passengers into the belief that the halting of the train at a station is meant as an invitation to them to alight when it is not so intended; and, if the conduct of the servants engaged in the management of the train is such as may reasonably produce that impression, and the passenger so understands it, and in the attempt to leave the coach at a place where no facilities are provided for his doing so, and whilst in the exercise of due care and diligence in doing so, he is injured, the company will be liable."

"(5) The court instructs the jury that, if the plaintiff was a passenger on said train for Ashdown, then it became and was the duty of the defendant to cause its said train to stop at Ashdown, and to remain at a standstill a reasonable length of time sufficient to enable the plaintiff in the exercise of ordinary care and diligence to alight therefrom, and if they stopped such train short of said station, under circumstances which reasonably induced the plaintiff to believe that this was his station and the proper place to alight, and if plaintiff, without any negligence on his part attempted to alight, using ordinary care and diligence in such attempt, and that, before he had been given a reasonable opportunity to alight, the servants of defendant, without any warning being given, caused such train to start and thereby plaintiff was thrown down and injured as alleged, then plaintiff is entitled to recover.

"(6) A reasonable length of time in which passengers should alight is such time as a person of ordinary care and prudence under the circumstances should be allowed to take. It is the duty of the carrier in determining what is a reasonable length of time to take into consideration any special condition peculiar to any passenger, if known, and to the surroundings, and to give a reasonable time under the existing circumstances, as they are known by its servants, for the passenger to get off or on its train.

"(7) If you believe from the evidence that the plaintiff was injured by reason of the negligence of the defendant company, a recovery cannot be defeated on the ground of contributory negligence, unless it appears from the evidence that the plaintiff himself failed in the exercise of ordinary prudence, and that such failure so contributed to the injury that it would not have occurred if he had been without fault. Contributory negligence will not be presumed, but must be proven by a preponderance of the evidence.

"(8) The court instructs the jury that, if they should find from a preponderance of the evidence that the plaintiff was intoxicated at the time of the injury complained of, you are instructed that such intoxication, if any, does not, of itself, constitute a defense to plaintiff's right of recovery; and such intoxication, is not in itself evidence of contributory negligence, and is merely a circumstance to be considered by you in determining whether such intoxication contributed to the injury complained of. If it did not contribute to such injury, then such intoxication would be no defense to plaintiff's cause of action, and you should discard and disregard all testimony in regard to such intoxication in case you find that it did not contribute to plaintiff's injury."

S. W. Moore and Read & McDonough, for appellant. G. M. Barrett and Scott & Head, for appellee.

HILL, C. J.

This is the second appearance of this case here. Upon the first trial of it in the circuit court a verdict was directed and plaintiff appealed, and this court held that the plaintiff's testimony, if true, made out liability against the defendant, and that the case should be submitted to a jury under proper instructions. Davis v. Railway, 75 Ark. 165, 86 S. W. 995. The second trial resulted in a verdict in favor of plaintiff for the sum of $800, and the railroad has appealed from a judgment entered thereon. The testimony may be found stated in the former opinion. The evidence was practically the same upon this trial. The appellant questions the correctness of the court's instructions.

1. The principal attack is made on the first instruction, which is as follows: "The court instructs the jury that if they find from a preponderance of the evidence that the plaintiff was injured, and that such injury was...