St. Louis, I. M. & S. Ry. Co. v. Fambro

• Decision Date: 09 November 1908
• Citation: 114 S.W. 230
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. FAMBRO et al.
• Court: Arkansas Supreme Court

114 S.W. 230

ST. LOUIS, I. M. & S. RY. CO. v. FAMBRO et al.

Supreme Court of Arkansas.

November 9, 1908.

Appeal from Circuit Court, Miller County; Jacob M. Carter, Judge.

Consolidated actions by Gussie Fambro and by Florence Harkrider against the St. Louis, Iron Mountain & Southern Railway Company. From judgments for plaintiffs in each action, defendant appeals. Affirmed.

The following is the third instruction given at the instance of defendant: "The law does not require of the carrier that it do more than try to protect its passengers from dangers which it may reasonably anticipate. Therefore if you find from the evidence in this case that the plaintiffs of their own accord negligently jumped off the train while it was in motion, and thereby received the injuries of which they complain, they cannot recover, and your verdict should be for the defendant."

Miss Gussie Fambro and Miss Florence Harkrider, two young ladies residing in Center, Tex., started to St. Louis. They reached Texarkana between 8 and 9 o'clock on the 14th of August, 1907, and went to the ticket agent of the St. Louis, Iron Mountain & Southern Railway Company and asked what time a train would leave for St. Louis, and were told that a train then standing upon the track would leave in about five minutes (the train was scheduled to leave at 9 o'clock) for St. Louis. They asked if they had time to get tickets and have their trunk checked and were told that they would. They then purchased tickets for St. Louis, and one of them waited for change and took charge of their grips, while the other went to the baggage room and checked their trunks. They met in front of the door of the waiting room, and together went immediately to the Pullman car of the train indicated. There was no trainman at the entrance of the car to assist passengers on the train or to answer inquiries as to where the train went. They boarded it. One of them reached the vestibule, and the other was on the step immediately behind her, and there was a man standing in the vestibule whom they took to be a brakeman. Miss Fambro says he had on a uniform and train cap, and that she took him to be a brakeman, and asked him if that was the train going to St. Louis, and he said, "No," and she asked him a second time if it was the train to St. Louis, and he again replied, "No," and she said she had better get off, and he said "Yes," she had better get off. Miss Harkrider says that the trainman in the vestibule of whom they made the inquiries was not a Pullman porter; that he was a trainman and wore a uniform cap. Immediately upon being informed that that was not the St. Louis train, they alighted from it, and in doing so fell and were both injured. They said that they did not know that the train was moving when they attempted to alight therefrom, and that they got off as carefully as they could. The testimony of all the witnesses is that the train was then moving out of the station very slowly. The train had gone four or five car lengths when they fell. Miss Fambro says that one arm and shoulder were badly skinned, her hip was bruised, her knee bruised and sprained, and the leaders in her neck were strained, and she was very sore and suffered much pain as the result of the fall from the train. The soreness lasted a week or ten days, and it took the bruised places two or three weeks to heal. She suffered a mental shock and was badly frightened. She expended $5 for medicines, and was treated by the company's physicians at Texarkana and St. Louis. Miss Harkrider says her head was severely hurt by the fall, that she was knocked blind by the force of it, and it was a great nervous shock to her and prevented her from sleeping for several days, her body was bruised, and her muscles sprained, and she suffered from this for a month or more. She had a severe headache for a week, and then had frequent headaches for four weeks or more. She was also treated by the company's physicians at Texarkana and St. Louis. The facts in regard to the train were these: The train which they boarded went only to Little Rock, leaving Texarkana at 9 o'clock, p. m., and was due to reach Little Rock at 2:10 a. m., and another train left Little Rock at 3:40 a. m. for St. Louis. The next train which would have left Texarkana going direct to St. Louis was at 4:05 the next morning. Passengers were in the habit of taking this 9 o'clock train for St. Louis and making the change at Little Rock. These ladies brought suit against the railroad company for the personal injuries received, the suits were consolidated and tried together, and they testified as above outlined. Defendant's testimony tended to prove these facts: That the train was in motion when the young ladies boarded it; that they hastily and carelessly jumped from it; and that it was a Pullman porter, and not an employé of the railroad, who told them that the train was not for St. Louis. The defendant also introduced the testimony of a depot policeman, who said that they asked him if that was the train to St. Louis, and he told them that would be the train, and they could change at Little Rock. They denied ever seeing this man or receiving this information from him, or any one else.

The court gave the following instructions: "(1) The court instructs the jury that if you find from a preponderance of the evidence that plaintiff applied to the ticket agent of the defendant company, as alleged in her complaint, for a ticket from Texarkana to St. Louis, that such a ticket was sold to her by such agent and paid for by her, and that, at the time of the purchase of the said ticket, the said agent advised plaintiff that her train was then at the depot, and that she would have time to take passage on it; and if you further find from a preponderance of the evidence that the plaintiff, in the exercise of ordinary diligence, proceeded to the train so pointed out to her by said ticket agent, that the door of said train was open, and that plaintiff entered said train for the purpose of taking passage thereon for St. Louis — then you are instructed that plaintiff was a passenger. (2) The court instructs the jury that if you find from a preponderance of the evidence that the plaintiff was a passenger, and that she was injured, and that such injuries were caused by a moving train...