Barringer v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 14 January 1905
• Citation: 85 S.W. 94
• Parties: BARRINGER v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

85 S.W. 94

BARRINGER v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

January 14, 1905.

Appeal from Circuit Court, Clark County; Joel D. Conway, Judge.

Action by John A. Barringer against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The complaint alleges that appellant took passage on one of appellee's passenger trains at Camden, Ark., for Whelen, Ark., on the 25th day of December, 1900; that the train was late, and crowded with passengers, and, when it arrived at Whelen, appellant promptly attempted to leave the train, but the appellee negligently failed to stop its train long enough to permit him to alight, and, while appellant was in the act of alighting, negligently started the train with a sudden jerk, without notice to appellant, whereby he was thrown under the wheels, and his leg so badly injured that amputation became necessary. The damage was laid at the sum of $10,000, etc. The answer denied the material allegations of the complaint and pleaded contributory negligence, and the case was tried before a jury, and a verdict rendered for the defendant.

The plaintiff testified: "I live near Whelen. Last Christmas Day I went to Camden, and came back on the train. The same day I had four quarts of whisky. I got out when the train got to Whelen. I do not suppose I went at breakneck speed as I came out on the steps. I might have stopped a very short time. When I got down, the train was just about moving—already moving. Just as I hit the platform the gravel ran out from under me, and I tried to regain my position, but failed to do so. I had not been on the ground before. I spoke to the brakeman, and said something to him about putting me off at the mill. I did not see the conductor there. I was sitting, I suppose, on the third or fourth seat from the rear end of the car. When the train got to Whelen I got up and came right out of the car—not in a great rush, but about as I usually get off a train. When I stepped off, the train, likely, had not moved a foot. The train usually consisted of three coaches. It started off right fast that day. I fell, and the car wheel cut my leg off," etc. Cross-examination: "I don't think I got up before the train stopped. I suppose I stopped at the door two or three seconds, and spoke to the brakeman. The train started to move as I stepped from the platform, and my foot rolled on the gravel. I do not suppose I would have fallen if my foot had not rolled on the gravel, nor if the train had not been moving. I did not see the conductor. I saw no signal to start, and did not hear the brakeman hollo, `All aboard.' The train was not in motion when I started down the steps, but got in motion just as I went to step off. I had taken three drinks that day—one in Camden and two on the train." There were other witnesses for appellant, but none make the case any stronger for him than his own testimony. The testimony for appellee, by several witnesses, tended to show that appellant got off the train on the ground, and was entirely away from the train, but when he started he caught the handle bars, and attempted to get on again; that he was under the influence of liquor, and lost his footing, falling under the car, and receiving the injury complained of.

W. F. Osborne and McRae & Tompkins, for appellant. B. S. Johnson, for appellee.

WOOD, J. (after stating the facts).

The court modified appellant's first and second prayers¹ by changing the word "sufficient" to the word "reasonable," to which appellant objected. There was no error in the modification. A "sufficient" time, where the passenger acts with reasonable diligence, is but tantamount to giving the passenger a "reasonable" opportunity to alight. So we do not regard the modification as very material. But the law is that it is the duty of carriers to allow their passengers a reasonable opportunity for getting on and off their trains, and they must stop at stations long enough for that purpose. Ry. v. Person, 49 Ark. 188, 4 S. W. 755; Ry. v. Tankersley, 54 Ark. 28, 14 S. W. 1099; Ry. v. Lawton, 55 Ark. 429, 18 S. W. 543, 15 L. R. A. 434, 29 Am. St. Rep. 48; Van Cleve v. Ry. (Mo. App.) 80 S. W. 707; Keller v. S. City Ry., 27 Minn. 178, 6 N. W. 486; Davis v. C. Ry., 18 Wis. 175; 4 Elliott, R. R. §§ 1591, 1628. A reasonable time is such time as a person of ordinary care and prudence, under the circumstances, should be allowed to take. Imhoff v. C. Ry. Co., 20 Wis. 344. It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger and to the surroundings at the station, and to give a reasonable time, under the existing circumstances, as they are known or should be known by its servants, for a passenger to get on or off its train. 6 Cyc. 613.

There was no error in instructions numbered 3 and 4 given at request of appellee, when considered in connection with instructions numbered 3 and 6 given at instance of appellant.²

The first instruction at the request of appellee put the burden upon plaintiff, after establishing that his injuries were caused by the operation of appellee's train, to show by a preponderance of evidence that such injuries were caused by appellee's negligence. This was error, under the decisions of this court in Ry. v. Payne, 33 Ark. 816, 34 Am. Rep. 55; Ry. v. Taylor (Ark.) 20 S. W. 1083; Tilley v. Ry., 49 Ark. 535, 6 S. W. 8; Ry. v. Neely, 63 Ark. 640, 40 S. W. 130, 37 L. R. A. 616; Ry. v. Blewitt, 65 Ark. 235, 45 S. W. 548; Ry. v. Daniels, 68 Ark. 171, 56 S. W. 874; Ry. v. Cooksey, 70 Ark. 481, 69 S. W. 259. The long-established doctrine in this state under section 6773 of Kirby's Digest, is that, where an injury is caused by the operation of a railway train, a prima facie case of negligence is made against the company operating such train. Cases supra. The error in giving this instruction must cause a reversal unless the uncontroverted proof shows that appellant was guilty of contributory negligence.

The appellant had four quarts of whisky. He says he had taken three drinks, and the other proof shows that he was under the influence of liquor. The appellant says that the train was not in motion when he started down the steps, but got in motion just as he went to get off. He says it started off right fast, but that the train likely had not moved a foot when he stepped off. He says, "I...