Arkansas & Louisiana Railway Company v. Sain

• Decision Date: 03 May 1909
• Parties: ARKANSAS & LOUISIANA RAILWAY COMPANY v. SAIN
• Court: Arkansas Supreme Court

119 S.W. 659

90 Ark. 278

ARKANSAS & LOUISIANA RAILWAY COMPANY v. SAIN

Supreme Court of Arkansas

May 3, 1909

Appeal from Howard Circuit Court; James S. Steel, Judge; reversed.

STATEMENT BY THE COURT.

This is an action for personal injuries. The complaint alleges that the plaintiff is a minor ten years of age, and that the defendant is an Arkansas corporation. That on June 16, 1908 the plaintiff, with his older brother, had gone to the depot of the defendant company at Nashville, Ark., to meet some friends who were expected to arrive on the noon train of defendant. That when the train had arrived and stopped for the purpose of permitting the passengers thereon to alight the plaintiff stepped on to the platform of the rear car to ascertain if the parties for whom he and his brother were looking were passengers on said train. That while standing on the platform of said rear car, and while the passengers on said car were alighting, said car was negligently and violently thrown back some eight or ten feet, with such force as to throw the said Robert Jett Sain forward; and that he was so thrown forward and his great toe was caught between the bumpers of the car on which he was standing and the car immediately in front thereof, and by the force of the contact his said toe was greatly lacerated and cut off, from the effects of which he suffered great pain and the loss of his great toe, to his damage in the sum of one thousand dollars for which he prayed judgment.

The appellant answered, and admitted that the plaintiff was a minor, but averred that it had no knowledge or information of his age, and therefore did not admit that he was only ten years of age. The answer denied further all the material allegations of the complaint; alleged that it was immaterial that the train was standing at the depot for the purpose of permitting passengers thereon to alight, and that it was immaterial that the accident occurred while passengers were alighting therefrom. The answer set up contributory negligence of the plaintiff, and that he was a mere trespasser or meddler, as affirmative defenses.

The evidence developed the following facts: Robert Jett Sain, a youth about eleven years of age, went to appellant's depot in the town of Nashville to meet some delegates that were expected to arrive on the train. He had not been sent there for the purpose of meeting the delegates. The train had been stopped two or three minutes. He got upon the platform between the coaches for the white and colored people. He was in three or four feet of the brakeman, who was there when he got upon the platform of the coach. The train backed suddenly and then stopped, and that threw him forward upon the white people's coach, and his great toe was caught between the bumpers of the two cars. The delegates, who were taking part in a school contest, were not in his class, but they were older than he. He went to see whoever came. He could have seen them get off without going on the train. He did not know that the train bumped up when it moved backward or forward did not know how the train worked. He was barefooted. Didn't know how it was that his toe was caught without his whole foot being caught.

It was shown that the toe was badly mashed, and the tip of the bone pinched off. The doctor attended him ten or twelve days, and the boy suffered greatly. There was a scar that would probably be permanent. With that exception, the physician did not "see that it would trouble him after he reached his majority." It was shown that the train had come to a stop for three or four seconds; some of the passengers had got off, and others were trying to get off when the train backed the first time. There was a violent backing, the train started back very suddenly and stopped. They backed three times or more before making a successful coupling, while the passengers were attempting to get off.

The youth testified, over appellant's objection, that he had gone to the train often before to meet people, that he did so whenever he wanted to meet anybody; that he had gone there a number of times to meet his father and brother, and had always gone on the train to meet them, and he did not think that any of the employees ever objected to his doing so. It was shown by the father of the injured lad, over the objection of appellant, that it had been the habit of his children to always meet him at the depot when he came home, for ten or fifteen years. "They all come," says he, "and get on the platform to meet me, my two little boys and youngest girl have made it a habit to get up on the train. I have noticed other people, but my children especially; never heard a word of objection from any of the employees."

It was shown on behalf of appellant that its employees were doing on this occasion as they usually do when they have box cars in the train. The slack was taken up in the train so that the pin was tight, and the head brakeman "gave the engineer the slack signal, and he gave a little slack." The brakeman gave an easy slack signal, and the engineer came back as easy as he could to pull the pin. The brakeman did not see the plaintiff when the signal was given, did not know that he was there. It was customary to cut the cars off in the way they were doing that day. The brakeman knew that passengers were getting off the train at the time the accident occurred; he was assisting them off. "The back action was not very quick; just a gradual moving back." The witness testified: "It is not a fact that people who are meeting relations go there every day and get on that train, and I never open my mouth about it. They don't get on that train when I see them. We tell people not to get on the train who have no business there." There was a sign at the depot reading, 'No trespassers allowed.' It is a warning for trespassers to keep away. The witness did not remember when he last saw it, and would not say that it was there at the time of the trial. If it had been moved, witness did not know it. There is a sign on the passenger coach door which reads:

"Passengers are not allowed to ride on the platform." The platform is for persons to get on and off the train. It is not there for persons to stand on the platform. There is no danger on the platform when the train is standing still.

The court, over the objection of appellant, gave, among others, the following prayers for instructions at the instance of appellee:

"6. Although the jury may believe from the evidence that the plaintiff had gone upon defendant's car without right, yet if you believe his presence there was known to the employees of the defendant, then the defendant would be bound to use ordinary care not to hurt him."

"7. If you find for the plaintiff, you may assess his damages at whatever sum you believe the evidence shows that he has sustained; and in arriving at this you may take into consideration his probable loss of earnings after he reaches his majority caused by the injury, if you find there is any probable loss, and the increased expenses he will probably incur on account of the injury after that time, if any, and damages for his past, present and future pain, if any, caused from said injury, and for his personal disfigurement, if any."

Other instructions were given at the instance of appellee, and also the appellant, but it is unnecessary to set them out here. The jury returned a verdict for $ 250 in favor of plaintiff. Judgment was rendered for that amount, and this appeal has been duly prosecuted.

Judgement reversed and cause remanded.

E. B. Kinsworthy, Lewis Rhoton, and W. C. Rodgers, for appellant.

The failure of a railroad company to keep a lookout to prevent boys from swinging on the ladders of its moving trains is not negligence. 57 Ark. 461. The only duty the company owes such a trespasser is not to injure him wantonly. 75 Ark. 461. Instructions should be applicable to the facts. 14 Ark. 530; 37 Ark. 580; 54 Ark. 336; 77 Ark. 109; 84 Ark. 373. Conjectures cannot take the place of reasonable evidence. 29 Ark. 448. There can be no recovery for loss of earnings during infancy. 65 Ark. 619. Appellant owed appellee no duty except not to recklessly injure him after his peril was discovered. 45 Ark. 246; 83 Ark. 300; 86 Ark. 306; 114 Ill. 79. And it owed him no duty to discover him. 45 Ark. 246; 57 Ark. 461; 86 Ark. 306. The burden was on appellee to show that appellant discovered his perilous situation. 83 Ark. 300; 86 Ark. 306. A naked license to pass over premises will not create a duty on the part of the owner to provide against danger or accident. 92 S.W. 874; 108 N.Y. 205; 93 Ky. 408; 64 N.H. 220; 154 Mass. 349; 49 S.C. 12; 136 Ind. 366; 91 Tenn. 428; 154 Ind. 49; 114 Ill. 79; 99 Va. 156. And infancy does not change the status of a trespasser or licensee. 93 KY. 408; 95 Ky. 314; 64 N.H. 220; 154 Mass. 349; 150 Mass. 515; 109 Ind. 179; 13 S.W. 275; 6 Tex. Civ. App. 702. One cannot, by his concurring fault, bring on an injury and then recover therefor. 36 Ark. 371; 48 Ark. 106; 76 Ark. 256; 81 Ark. 1. There is no presumption of negligence from the accident itself. 179 U.S. 658; 70 Ark. 437; 82 Ark. 372; 79 Ark. 76. It was error to admit evidence of custom to allow people to get upon a train to meet passengers. 45 Ark. 246; 99 Ky. 332; 126 Mo. 372; 49 S.C. 12; 99 Va. 156.

Will P. Feazel, Sain & Sain, and T. D. Crawford, for appellee.

The custom of permitting people to go upon trains to meet incoming passengers has grown to be an incident to the railroad business. 55 Ark. 432. And it is the company's duty to keep a lookout for persons in places of danger when about to move its train after the passengers begin to alight. 58 S.C. 70; 53 L. R. A. 913; 30 L. R. A. 257. Railroads are responsible for all damages to persons or property caused by...