Arkansas M. R. Co. v. Canman

• Decision Date: 01 March 1890
• Citation: 13 S.W. 280
• Parties: ARKANSAS M. R. CO. <I>v.</I> CANMAN.
• Court: Arkansas Supreme Court

Page 280

13 S.W. 280

ARKANSAS M. R. CO.v.

CANMAN.

Supreme Court of Arkansas.

March 1, 1890.

Appeal from circuit court, Phillips county; M. T. SANDERS, Judge.

John J. & E. C. Hornor, for appellant. Stephenson & Trieber and E. W. Kimball, for appellee.

BATTLE, J.

The Arkansas Midland Railroad Company is a corporation owning and operating a railroad between Helena and Clarendon, in this state, for the carriage of passengers and freight to and from its termini and intervening points. It has never run trains, exclusively, for transporting passengers, but the trains on which it has carried them were composed of passenger and freight cars, and carried freight. On the 12th of January, 1888, for a valuable consideration, it undertook to carry O. G. Canman, as a passenger, on a train composed of two box-cars, a baggage-car, and two passenger-coaches, from Helena to Clarendon. The box and baggage cars were placed in front of the coaches. The train was not provided with air-brakes nor with bell-pulls, but was furnished with hand-brakes and two brakemen. Canman took a seat in one of the coaches. The train moved out, and was running at the rate of about eight miles an hour, and had gone a short distance, when the coach in which Canman was seated left the track, turned over, and severely injured him. For the damages he suffered in consequence of the injuries received he brought this action, and alleged that they were caused by the negligence of the railroad company.

The foregoing facts were proven on the trial. It was also proved that the road-bed of the defendant was ballasted with dirt; and evidence was adduced tending to prove that it was impracticable to use a bell-rope and air-brakes on a train composed of freight and passenger cars; that the coach that was overturned was derailed at a point where a rail in the track, on the east side, was slightly bent out of line, and "a spike seemed to be pushed towards the east;" and that, in leaving the track, the wheels on the east side of the coach went between the rails, and the others on the outside and west of the track.

Among other instructions, the court gave the following, over the objections of the defendant, to the jury:

"(1) Where a passenger for hire, being carried on the train of a railroad company, is injured without fault of his own; the law presumes that the railroad company has been guilty of negligence, which presumption the railroad must remove by evidence; and if the jury find that plaintiff, while a passenger as aforesaid on defendant's train, was injured without any fault of his own, and the defendant has failed to satisfy you by the evidence introduced that it was not through its fault that the accident occurred, or that it was caused by plaintiff's own or contributory negligence, the verdict must be for the plaintiff.

"(2) If the jury find from the evidence that there was a spread or bent rail at the time and place of derailment, the jury may infer negligence from that fact, and the burden of disproving it is on the defendant."

The defendant asked, and the court refused to give, the following instruction: "If the jury find from the testimony that the train on which plaintiff was a passenger at the time he was injured was a mixed train for carrying passengers and freight, and that such train at the time when such injury was received was not provided with air-brakes or a bell-cord, and if they further find from the testimony that it is not practicable to use air-brakes and bell-cord on such trains, then the jury are instructed that the want of such appliances was not negligence in defendant."

The defendant asked for further instructions as to the degree of diligence, care, skill, and prudence it was bound to exercise in the construction, maintenance, and operation of its railroad, which the court refused to give.

The result of the trial was a verdict and judgment in favor of plaintiff, and an appeal by the defendant to this court.

The first instruction, construed in connection with the other instructions given, contained no errors. More appropriate words, however, and words adapted to express the idea intended, should have been used instead of the word "satisfy." In order to overcome the presumption of negligence, it was not necessary for the defendant to introduce evidence sufficient to convince the jury, beyond a reasonable doubt, that it had not been negligent. "It is never necessary," says the court in Shinn v. Tucker, 37 Ark. 589, "in a civil case, that a jury should be satisfied of the truth of their verdict, in the sense of resting upon it confidently That principle belongs to criminal law. Civil verdicts should be given on preponderance alone for the party whose evidence, considered altogether, outweighs that of the other as to the facts in issue, on against the one having the onus, if, on the whole, the weight seems balanced."

The second instruction given was erroneous. It assumes that any spread or bend in a rail is negligence, without regard to its sufficiency to cause the derailment of a car, or in some manner impair the safety of the train. It is true that the court instructed the jury that, if they found that the accident to the train was occasioned by a defect in the road-bed or track, and that "defendant had taken all the means which would have been taken by a cautious and prudent person in the exercise of the utmost prudence to prepare and maintain its road-bed and track where the car was derailed," the defendant would not be liable; but at the same time it told the jury, in effect, that, if they found that there was a spread or bent rail at the time and place of derailment, they might infer that the defendant had not used such means and prudence, and was guilty of negligence.

Railroad companies "are bound to the most exact care and diligence, not only in the management of trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of passengers." While the law demands the utmost care for the safety of the passenger, it does not require railroad companies to exercise all the care, skill, and diligence of which the human mind can conceive, nor such as will free the transportation of passengers from...