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

Citation32 S.W. 500
PartiesST. LOUIS, I. M. & S. RY. CO. v. AVEN.
Decision Date19 October 1895
CourtSupreme Court of Arkansas

Appeal from circuit court, St. Francis county; Grant Green, Jr., Judge.

Action by John W. Aven against the St. Louis, Iron Mountain & Southern Railway Company to recover for damages alleged to have been suffered from defendant's negligence in the construction of a bridge at a crossing of its track. There was judgment for plaintiff, from which defendant appeals. Reversed.

Dodge & Johnson, for appellant. S. R. Cockrill, for appellee.

BATTLE, J.

John W. Aven brought this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for a personal injury which he alleges was received by him through the negligent construction and maintenance of a bridge and the approaches thereto, which constituted the highway crossing of the defendant's railway track.

In 1882 the defendant constructed a railway over a public road in St. Francis county. It erected an embankment 6 feet high, and dug a ditch on east side thereof 10 feet deep, 18 feet wide at the top, and 5 feet and 4 inches at the bottom, and thereby rendered the road impassable. In order to restore the road to use, and make a crossing for it over the railway, it made an inclined embankment to its track on the west, and placed a bridge across the ditch on the east, and approaches to the same. The bridge was 25½ feet long, and from 12 to 16 feet wide. One witness said that the principal part of the flooring of the bridge was 16 feet long, and that there were two or three planks near the center 12 feet in length; and another said about one half was 12 feet long, and the other half 16 feet, and that the short planks began about the center of the bridge, and extended to the east end of it. "The fall of the approach to the bridge was about 21 inches to 10 feet, on the west side of the bridge, — the side upon which the plaintiff approached at the time" the injury was received. The incline on the west side of the embankment was very steep. There were no railings or banisters on the bridge at the time of the injury.

On the morning of the 17th of September, 1892, the plaintiff approached the bridge from the west, driving a horse and cart or buggy. What followed he relates as follows: "I drove off, and my mare trotted on up to the railroad dump, and walked on the railroad track, and, just about the time the cart got in the center of the track, the horse took a scare from something, — I never have known what, — but she made a fearful lunge, and jumped just as far as she could, and partially fell right at the edge of the bridge; and as she came up I made an effort to jump out of the cart, and as I did that she came up, and went right over the bridge. The shafts of my cart struck the bridge, and she jumped square down on her head, and I and the cart, and all, pitched right over into the ditch, and struck the bottom." The evidence shows that she jumped off about the center of the bridge. In the fall the plaintiff's right leg was broken just above the ankle joint; both bones were broken; one pierced through the skin at the ankle. The joint was opened, the membranes around it were ruptured, and the synovial fluid escaped. He was confined to his bed many weeks, and suffered excruciating pain.

Plaintiff considered his mare safe, and testified that he never knew her to become frightened before she leaped from the bridge, but she was a "high-headed animal." His wife constantly refused to cross the bridge with him, in his buggy, while driving the mare, and would get out and walk across; but she did ride over it with him when he was driving another horse, which died prior to the time he purchased the mare. He further testified that he never knew that the mare was partially blind, but she had a white speck in one eye. He traded her about four weeks after he was injured, and while he was confined to the house. One witness testified that she was blind in one eye; and another, that he knew that she was a "fiery and high-headed animal." One witness testified that he asked the plaintiff, on the day of the accident, how it happened, and he replied, "I can't tell, but she must have had a fit."

The court instructed the jury, in part, over the objections of the defendant, as follows:

"(1) The court instructs the jury that, where a railroad is built across a public highway, it is the duty of the railroad company to construct and maintain proper crossings for the benefit of the traveling public; and if, in the construction of the railway at and across the public highway, the railroad company cuts a ditch along the side of the track, and across the highway, it is its duty to construct and maintain a safe and suitable bridge across and over said ditch, so that the highway may be restored to a safe condition for travel.

"(2) If the jury find from the evidence that the defendant cut a ditch across the public highway, as alleged in the complaint, and failed and neglected to erect and maintain a safe and suitable bridge across the same, and that the failure and neglect of the defendant railroad company to construct and maintain a safe and suitable bridge across the said ditch was the proximate cause of the injury to plaintiff, then you should find for the plaintiff.

"(3) If the jury find from the evidence that the defendant railroad company cut a ditch across the public highway, as alleged in the complaint, and that it constructed a bridge across the same, then it is a question of fact, for you to determine, whether or not the same was sustained, and maintained in a safe and suitable manner, and whether or not it was necessary that guard rails should have been constructed and maintained on said bridge; and if you find that it was necessary, and that the defendant failed and neglected to construct and maintain such guard rails, and that its negligence and failure in this behalf was the proximate cause of the injury and damage to plaintiff, then you should find for the plaintiff.

"(4) If the jury find from the evidence that the construction of the said railway made it necessary for a bridge to be erected at the crossing of the railroad and public highway, in order to make this highway available to the public, the court instructs you that it was the duty of the railroad to erect and maintain such bridge so that the highway should be restored to as passable a condition, and so kept, as was consistent with the use of the railroad company, and, if guard rails were required for that purpose, then it was the duty of the railroad company to place guard rails or banisters upon the bridge; and if you find that such was necessary, and that the railroad failed and neglected to provide and maintain the same, and that the absence of the said guard rails or banisters was the proximate cause of the injury to plaintiff, then you will find for the plaintiff."

And instructed the jury as follows at the request of the defendant:

"You are instructed, if you find from the evidence that the plaintiff's horse had a fit upon him, and was thereby rendered uncontrollable, at the time of the accident, and that without such fit, and the consequent escape from control, the accident would not have happened, you will find for the defendant."

"If the jury believe from the evidence that plaintiff's horse was, at the time of the accident, blind in one eye, and that this fact was known to plaintiff, and further believe from the evidence that a reasonable and prudent man would not have attempted to drive such a horse across such a bridge as this is described to be, in the manner that plaintiff attempted to drive his horse, then you are instructed that the plaintiff was guilty of negligence in so attempting to drive over said bridge; and, if you find that such act on his part contributed to the injury, you will find for the defendant."

And refused to give the following at the request of the defendant:

"[You are instructed that there is no statute in this state prescribing that bridges of the character of this one should be provided with banisters or side rails], and unless you find from the evidence that the bridge in question was constructed and maintained, as to banisters and side rails, in a manner different from what a reasonable and prudent man would have done under the circumstances, then you will find that there was no negligence on the part of the railway company with reference to the construction and maintenance thereof, and you will find for the defendant." But modified it by striking out the words in brackets, and gave it as amended, over the objections of the defendant.

And the defendant asked, and the court refused to give, the following:

"You are instructed that if you find from the evidence that the plaintiff's horse became frightened, and by reason thereof plaintiff was unable to control him, and that without such fright the accident would not have happened, you will find for the defendant."

The jury returned a verdict in favor of plaintiff for $10,000. A motion for a new trial was filed by the defendant, and was overruled by the court. Exceptions were duly saved, and the defendant appealed.

In returning a verdict in favor of the plaintiff, the jury necessarily found that the evidence was insufficient to authorize them to return a verdict in favor of the appellant under the instructions given at its request. There being evidence to sustain them in that respect, we are concluded by the verdict to that extent, and the appellee stands acquitted of contributory negligence, as to this appeal.

The main questions for our consideration are presented by the instructions given and refused by the court, and they are: (1) What was the duty of appellant as to the construction of the highway crossing over its railway track? And (2) what is its liability for the injuries received by the appellee, they being results of a leap of his horse from the bridge, which leap was caused by fright?

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3 cases
  • St. Louis, Iron Mountain & Southern Railway Co. v. Aven
    • United States
    • Arkansas Supreme Court
    • October 19, 1895
  • St. Louis, I. M. & S. Ry. Co. v. Dawson
    • United States
    • Arkansas Supreme Court
    • January 13, 1906
    ...with the instructions on the subject given at the instance of the defendant, and was calculated to mislead the jury. Railway v. Aven, 61 Ark. 155, 32 S. W. 500; Fordyce v. Edwards, 65 Ark. 101, 44 S. W. 1034; Goodell v. Bluff City Lumber Co., 57 Ark. 203, 21 S. W. 104; Fletcher v. Eagle, 74......
  • Missouri Pac. R. Co. v. Price, 18.
    • United States
    • Arkansas Supreme Court
    • December 1, 1930
    ...highway, but only for such things as ordinarily exist, or such as may reasonably be expected to occur. See, also, St. L., I. M. & S. Ry. Co. v. Aven, 61 Ark. 141, 32 S. W. 500; St. L. & S. F. R. R. Co. v. Ferrell, 84 Ark. 270, 105 S. W. 263. So, here, while it now appears that the railroad ......

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