Arkansas Central Railroad Co. v. Bennett

• Decision Date: 25 March 1907
• Citation: 102 S.W. 198,82 Ark. 393
• Parties: ARKANSAS CENTRAL RAILROAD COMPANY v. BENNETT
• Court: Arkansas Supreme Court

102 S.W. 198

82 Ark. 393

ARKANSAS CENTRAL RAILROAD COMPANY v. BENNETT

Supreme Court of Arkansas

March 25, 1907

Appeal from Franklin Circuit Court; Jeptha H. Evans, Judge affirmed.

Judgment affirmed.

Oscar L. Miles and Lovick P. Miles, for appellant.

1. After permitting the plaintiff to amend his complaint so as to set up another cause of action, the court erred in refusing to postpone or continue the trial. Under the original complaint, appellant had no reason to anticipate that the testimony of the engineer and fireman would be required. Hence it was not at fault in not having present these witnesses whose testimony would be necessary to meet the new issue raised by the amendment. 67 Ark. 142; 71 Ark 197; 55 Ark. 568; 75 Ark. 465; 59 Ark. 165; 84 N.Y. 420; 1 Enc. Pl. & Pr. 547, 557; 51 Am. St. Rep. 414, notes.

2. The court should have directed a verdict for the defendant. If the car was moving so slowly that the conductor, by the exercise of a reasonable foresight, could not anticipate that appellee would be injured in attempting to board the train no duty rested on the conductor to make an effort to avoid such consequences as resulted. 75 Ark. 211; 123 N.Y. 391; 56 Ark. 594.

Sam R. Chew, for appellee.

1. There was no prejudicial error in permitting the amendment and denying the motion to postpone or continue. The complaint as originally drawn was sufficient to put the defendant on notice that the movement and operation of the train would be relied upon. Moreover, the motion did not comply with the statute. Kirby's Dig. §§ 6173, 6145. This court will not interfere with the trial court's discretion with reference to continuance, unless it affirmatively appears that there has been a flagrant abuse of discretion, amounting to a denial of justice. 61 Ark. 94; 2 Ark. 42; 24 Ark. 599; 9 Ark. 108; 8 Ark. 119; 54 Ark. 243.

2. In alighting from the car at a regular station, other than the terminus of his journey, appellee did not lose his character as a passenger. 113 N.Y. 355; 90 N.W. 649; 148 Mass. 207; 2 L. R. A. 83 and notes. Unquestionably it was negligence on the part of the conductor to start the train when he knew that appellee had started to reenter the car while it was yet standing still; and, as to any contributory negligence on the part of appellee, that question is settled by the verdict. 8 Railroad Rep. 911; 71 S.W. 630; 45 S.W. 496; 47 S.W. 872; 57 S.W. 465; 37 Ark. 519; 46 Ark. 182.

OPINION

RIDDICK, J.

This is an action by A. S. Bennett against the Arkansas Central Railroad Company to recover damages for an injury caused by his falling from the steps of a car and sustaining injuries which necessitated the amputation of an arm. Bennett alleged in his complaint that he had bought a ticket and taken passage over the road of defendant from Paris, Arkansas, Ft. Smith. The train was a mixed train, composed of freight and passenger cars. When the train stopped at Lavaca, a station between the two points named, and while the crew of the train were switching cars, plaintiff alighted from the train and engaged in conversation with some acquaintances he met at the depot. The conductor of the train was present. He was acquainted with plaintiff, and knew that he was a passenger. While the conductor and plaintiff were standing on the platform, the conductor called, "All aboard." The plaintiff then asked him if the coaches would stop at the platform. The conductor replied no, but said that they would go through slow. Bennett at once started to get on the coach, but the conductor gave the signal to start, and before the plaintiff reached the end of the platform the train had commenced to move, and when he attempted to board it was moving at the rate of two or three miles an hour. As he put his foot on the step, the motion of the train caused his foot to slip, and he fell from the platform, and his right arm was crushed by one of the wheels of the coach. The complaint alleged that the injury was caused by the negligence of the conductor; that the conductor, seeing and knowing that plaintiff was approaching the coach for the purpose of entering it while it was standing still, carelessly, negligently and willfully caused the train to move and start off just at the time when plaintiff was near the coach; that the conductor followed immediately behind plaintiff; that because the train was moving slowly and because the conductor was present and knew that plaintiff intended to board the train the plaintiff felt encouraged and invited by the conductor to make the attempt. He did so and was injured.

On the trial Bennett testified in his own behalf and detailed the facts stated above. As to the facts immediately preceding the accident, he said: "I saw they were ready to start, and I asked conductor Harnest if they were going to stop when they got to the platform. He said no or something of that kind, and I said I will get on before the train starts, and I started at once, but before I got off the platform the train had started to move, and of course I thought it was safer for me to get on there, for it was not so high. I waited until the end of the coach pulled up to the platform, and I caught hold of the car with both hands and got my right foot on the step and slipped, and that jerked my left hand from the bar." He was then asked by his counsel, "How came your foot to slip?" and answered: "The car felt to me like it jerked a little; like it had a little more steam." Thereupon counsel for defendant objected to that part of the testimony as to the jerk in the movement of the train because there was no allegation in the complaint upon which to base it. The court overruled the objection, but counsel for plaintiff thereupon asked permission to amend his complaint so as to show "that at the time plaintiff took hold of the hand rails on the coach, the coach was suddenly and violently jerked forward." The court permitted this amendment to be made, to which ruling of the court the defendant objected and excepted. The defendant thereupon moved the court to withdraw the case from the jury and either postpone the hearing to a later day of the term or continue the same for the term to enable the defendant to secure the presence of witnesses who could testify as to how the train was handled at the time referred to by plaintiff. Counsel for defendant stated to the court that these witnesses were in Ft. Smith or Paris, Ark., and not in attendance upon the court, and that defendant needed additional time to prepare its defense to the allegation of sudden jerking in the movement of the train. But the court overruled the motion, stating that he considered the complaint as originally drawn sufficient to put defendant on notice that the movement or operation of the train would be relied upon by the plaintiff, and to this ruling of the court the defendant duly excepted.

It is urged with much force that this amendment made a new charge of negligence against the defendant, and brought a new issue in the case of which the defendant had no previous notice and that the court erred in refusing to postpone or continue the case until the defendant had reasonable time to procure its witnesses and prepare its defense against this charge. It seems to us that this amendment does make a new charge of negligence not previously embraced in the complaint. As originally drawn, the charge was that the conductor, knowing that plaintiff was about to board the train, negligently started the train before he could do so, and thus invited and exposed him to the risk of boarding a moving train. In other words, the plaintiff in the original complaint based his right to recover upon the negligence of the conductor, with which the engineer had nothing to do. In addition to this, the amended complaint charged that as plaintiff took hold of the hand rails on the coach of the moving train "the said coach was suddenly and violently jerked forward." It is not alleged that the signal of the conductor for the train to start caused this sudden and violent jerk, and the inference is that it was the fault of the engineer. If there had been any evidence to support this amendment, it would have been a serious question as to whether the defendant had not been prejudiced by the refusal of the court to give time to meet this new charge in the complaint. But, though the amendment was permitted, we see nothing in the evidence tending to show any violent or sudden jerk of the...