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

• Decision Date: 29 April 1912
• Citation: 146 S.W. 861
• Parties: BEARDON v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

146 S.W. 861

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

Supreme Court of Arkansas.

April 29, 1912.

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

Action by Mrs. Jane Beardon against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The appellant was 68 years old. She was illiterate and incapable of transacting business. She relied on her son to transact all of her business for her. She had been deaf in one ear since childhood. On May 9, 1911, she was hurt on a passenger train of appellee at Beebe. She sued the appellee for damages for the injury, alleging, in substance, that after the train had stopped for the station at Beebe she arose from her seat with the view of getting off the train at the station; that as she started to the front of the coach the train gave a sudden jerk and threw her back on the seat, injuring her back and shoulders, from which she suffered at the time, and has continued to have mental and bodily pain and suffering. She alleged that her injuries were caused by the negligence of the appellee in not stopping its train a sufficient length of time to permit its passengers to alight in safety and in jerking the train forward without warning to the appellant. The appellee denied all the material allegations of the complaint, and set up a release, and also the defense of contributory negligence. The verdict was in favor of the appellee, and the appellant has duly prosecuted her appeal.

Thos. C. Trimble, Jr., of Lonoke, and June P. Wooten, of Little Rock, for appellant. W. E. Hemingway, of Little Rock, and Lovick P. Miles and Thos. B. Pryor, both of Ft. Smith, for appellee.

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

Among the instructions given at the instance of the appellee were the following:

"(4) You are instructed that although a person may make a compromise or settlement when not in a normal condition, mentally or physically, yet when she regains her normal condition mentally she may and does ratify her act if she has knowledge of it, by silence and retaining the benefit, if any, accruing to her from said act."

"(8) If you find from the evidence that the plaintiff did not authorize this suit to be brought, then under the law neither her son nor any one else had authority to bring the suit, and your verdict should be for the defendant.

"(9) If you find from the evidence that the plaintiff did not authorize any one to send the money back to the railway company, then the court instructs you that the mere fact that some one may have sent the money back would not have any effect upon the settlement, if there was a settlement made, and plaintiff cannot recover and your verdict must be for the defendant."

Instructions 4 and 9 were erroneous. They were calculated to cause the jury to believe that a settlement made by appellant with the appellee, after the injury, was binding upon the appellant if she retained the money that she received at the time of the ...