St. Louis, Iron Mountain & Southern Railway Co. v. Pollock

• Citation: 123 S.W. 790,93 Ark. 240
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. POLLOCK
• Decision Date: 20 December 1909
• Court: Supreme Court of Arkansas

123 S.W. 790

93 Ark. 240

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. POLLOCK

Supreme Court of Arkansas

December 20, 1909

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

STATEMENT BY THE COURT.

Appellee was a passenger on appellant's train. He was passing between the coach and smoking car. On the platform between the cars and in the direct line of the passage way there was a little step box or stool about seven or eight inches high. Appellee stepped over this box in passing from one car to the other, and as he did so the train gave a sudden jerk. It was a jerk as if the train was rounding a curve, and appellee's heel struck the box, and he fell backward hitting his back against the stool, and was injured. Appellee could have moved the stool out of his way, but, instead of doing so, he stepped over it, when the train jerked, causing him to fall. The train was vestibuled, and the box was a stool used by the train men in assisting the passengers to get on and off the cars.

Appellee sued appellant, predicating his cause of action upon the above facts, and alleging that appellant negligently placed and permitted the stool to remain in the aisle of the platform, and negligently permitted the train to give a violent jerk, throwing and injuring appellee as indicated above.

Appellant denied the material allegations. Appellant's evidence tended to prove that the train was running smoothly, that appellee made complaint to the conductor of a step being across the pathway, that the conductor went and found the step or stool in front of the door about five inches. He moved it back of the door of the vestibule where it should have been placed by the porter. The appellee did not tell the conductor that he was hurt. The Hot Springs special train on which appellee was riding was a solid train all vestibuled. The cars all go together. One car can not roll one way and then the other. They go in a bend, and can't possibly jerk one car and not jerk altogether. The motion of the cars in turning a curve is a swaying motion, but not a sudden lunge. It might cause a person to stagger and lose his balance if unfamiliar with its motion.

The instructions of which appellant complains are as follows:

"3 1/2. If the plaintiff has shown by the preponderance of the evidence that he was injured by the running of defendant's train, then he has made a prima facie case of negligence against the defendant. But, if it appears from the evidence introduced by plaintiff that the injury did not result from the negligence of defendant, the prima facie case is rebutted.

"2. If you believe from the evidence that the plaintiff, H. B. Pollock, was a passenger on one of defendant's trains between Little Rock and Benton Arkansas, and, while riding as such passenger and while the train was running, undertook to pass from one car to another, and found a step box or stool in the passageway between said cars, which said step box or stool he attempted to step over, and in doing so he failed to use ordinary care, that is, such care as an ordinarily prudent person would exercise under the circumstances, and was caused to fall by reason of the motion of the car, and was injured by falling on the step box or stool, then your verdict should be for the defendant, unless you further find from the evidence that the movement of the car which caused him to fall was sudden, unusual and unnecessary in the ordinary operation of the train."

The modification to appellant's prayer number 2 above is shown in capital letters. To this modification appellant objected, and duly excepted to the rulings of the court. The verdict and judgment were for $ 500.

Appellant duly prosecutes this appeal.

Judgment affirmed.

Kinsworthy & Rhoton, and Chas. Jacobson, for appellant.

Section 6607, Kirby's Dig., must be strictly construed, and should not be extended beyond the cases where it obviously applies. 70 Ark. 481; 88 Ark. 12; 73 Ark. 548. A passenger who passes from one car to another while train is in motion is guilty of contributory negligence. 47 La.Ann. 1671; 111 Ala. 447; 146 Mass. 205; 81 Me. 84; 151 Mass. 220: 146 Mass 605.

Wood & Henderson, for appellee.

Instruction No. 3 1/2 was in accordance with section 6773 of Kirby's Dig., and was proper. 65 Ark. 235; 73 Ark. 548; 80 Ark. 19; 81 Ark. 579; 83 Ark. 217; 87 Ark. 308; Id. 581; 88 Ark. 204. Appellee was not guilty of contributory negligence in trying to step over the stool. 79 Ark. 137; 78 Ark. 55; 85 Ark. 326.

OPINION

WOOD, J., (after stating the facts.)

There was evidence tending to show that appellee's injury was caused by a sudden jerk, or the swaying motion of appellant's train while it was running and rounding a curve, causing him to strike the stool with his heel and to fall. This warranted submitting the question to the jury as to whether appellee's injury was caused by the running of the...