Arkansas Midland Railroad Company v. Rambo

• Decision Date: 29 March 1909
• Citation: 117 S.W. 784,90 Ark. 108
• Parties: ARKANSAS MIDLAND RAILROAD COMPANY v. RAMBO
• Court: Arkansas Supreme Court

117 S.W. 784

90 Ark. 108

ARKANSAS MIDLAND RAILROAD COMPANY v. RAMBO

Supreme Court of Arkansas

March 29, 1909

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

STATEMENT BY THE COURT.

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, the plaintiff became a passenger on one of the 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 down grade. 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 attempted to rise 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 drunk 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 sometime prior to the accident, and that he had also taken some drinks of whisky.

The jury returned a verdict in favor of the plaintiff for $ 658 and defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

E. B Kinsworthy and Lewis Rhoton, for appellant.

1. The second instruction given was practically a peremptory instruction for appellee. It leaves but two things for them to find, i. e., whether he was a passenger, and whether he was injured. These facts not being controverted, nothing was left for the jury but to fix the amount to compensate him. The instruction was also erroneous in that it took from appellant the benefit of showing that it was not negligent and of showing that appellee was guilty of contributory negligence.

2. Where one becomes a passenger on a mixed train or freight train, he does so subject to the ordinary jolts and jars incident to the operation of such a train, and the jury should have been so instructed. 76 Ark. 523.

3. If appellant was standing up, in disregard of a printed notice warning passengers against such actions, he was guilty of contributory negligence. 71 Ark. 590.

4. The verdict was excessive.

Manning & Emerson, for appellant.

1. Proof of the wreck and the injury made a prima facie case. The burden was on appellant to show that it was not negligent, and the second instruction was right. 57 Ark. 418; Kirby's Dig. § 6773. This instruction is not to be construed alone, but in connection with all the others given. The jury were properly instructed that the presumption of negligence might be removed by evidence showing that appellant was not negligent. Since there was no evidence of contributory negligence, appellant could not have been prejudiced by the instruction. 63 Ark. 491; 69 Ark. 380; 73 Ark. 548; 83 Ark. 217; 85 Ark. 589; 60 Ark. 550; 88 Ark. 12; 89 Ark. 9.

2. There was no error in refusing instructions in reference to passengers on mixed or freight trains becoming such subject to the jolts and jars ordinarily incident to travel on such trains. The derailment of cars due to defective roadbed and improper loading of cars is not a risk assumed by a passenger. 89 Ark. 82.

3. There is no proof that appellee was standing, but on the contrary that he was just in the act of getting up.

4. The verdict was not excessive. 86 Ark. 587; 87 Ark. 109; 89 Ark. 9.

OPINION

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

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, 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 has been...