Arkansas Midland R. Co. v. Rambo

• Decision Date: 29 March 1909
• Citation: 117 S.W. 784
• Parties: ARKANSAS MIDLAND R. CO. v. RAMBO.
• Court: Arkansas Supreme Court

117 S.W. 784

ARKANSAS MIDLAND R. CO. v. RAMBO.

Supreme Court of Arkansas.

March 29, 1909.

Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.

Action by T. M. Rambo against the Arkansas Midland Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This suit was brought by T. M. Rambo against the Arkansas Midland Railroad Company to recover damages for injuries sustained by him while a passenger on defendant's train and alleged to have been caused by the derailment of the train. The railroad company denied negligence on its part, and pleaded contributory negligence on the part of the plaintiff.

On the 29th day of February, 1908, plaintiff became a passenger on one of defendant's trains running from Helena to Clarendon, in the state of Arkansas. It was a mixed train, having a passenger coach at the rear, a baggage car in front of it, and two freight cars in front of the baggage car. When about 10 miles out from Helena, the two freight cars jumped the track and were overturned. The cars ran along on the ties about five car lengths after leaving the rails. The rear freight car was loaded with lumber, and the wreck occurred while the train was going downgrade. The train conductor said that the lumber was loaded to the roof of a box car, and that this made the car top-heavy, which caused it to swing or sway from side to side. He said that was the only way he could account for the wreck. Plaintiff's witnesses said that they examined the roadbed after the wreck, and found that some of the ties were broken and that the ends of them were rotten.

Plaintiff testified that he was sitting on the right-hand side of the coach looking out of the window, and went to raise up to go to the water cooler to get some water; that just as he arose the wreck occurred, and that he was pitched across the aisle and knocked down; that he was confined to his bed as a result of his injuries for about three weeks, and suffered great pain. On cross-examination he stated that he had not drank any whisky in the coach prior to the accident, and that he had not been walking around in it. The defendant adduced evidence tending to show that he had been walking and standing in the coach some time prior to the accident, and that he had also taken some drinks of whisky. The jury returned a verdict in favor of plaintiff for $658, and defendant has duly prosecuted an appeal to this court.

E. B. Kinsworthy and Lewis Rhoton, for appellant. Manning & Emerson, for appellee.

HART, J. (after stating the facts as above).

Counsel for appellant assigns as error the action of the court in giving the following instruction: "(2) If you believe from the evidence that plaintiff was injured while a passenger on the train of defendant, and that his injuries were caused by the derailment of cars in the train resulting from the defective condition of the track, or defective equipments, or negligent operation or handling of the train, he would be entitled to recover in this action such sum as will compensate him for loss of time, expenses, and for the pain and suffering sustained by the plaintiff, as shown by the proof."

In the case of Railway Company v. Mitchell, 57 Ark. 418, 21 S. W. 883, the court said: "In an action against a railroad company for personal injuries, evidence that the coach in which plaintiff was riding as a passenger was derailed and overturned, and that plaintiff was injured thereby, is sufficient to cast upon the company the burden of proving that the injury was not caused by want of care on its part." This rule...