Chicago, Rock Island & Pacific Railway Company v. Owens

• Decision Date: 17 May 1915
• Docket Number: 386
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. OWENS
• Court: Arkansas Supreme Court

177 S.W. 8

118 Ark. 467

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. OWENS

No. 386

Supreme Court of Arkansas

May 17, 1915

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

Thos. S. Buzbee, John T. Hicks, H. T. Harrison and C L. Johnson, for appellant.

1. Instruction No. 2, holding defendant to the"highest degree of care" as to station or platforms is not the law. Elliott on Railroads, p. 406, par. 1590; 65 Ark. 255; 96 Id. 311; 167 S.W. 486.

2. This is not a case for exemplary damages. 53 Ark. 7; 77 Id. 115.

Baldy Vinson and S. M. Wassell, for appellee.

1. Appellee was a passenger and the carrier is, in effect prima facie responsible for the smallest negligence. There is no error in the court's charge. She obeyed the directions of the carrier's servant. By not waiting a reasonable time, Kirby's Digest, § 6704, was violated.

2. The company was guilty of negligence in the operation of its train. 96 Ark. 315; 65 Id. 255.

3. The verdict for exemplary damages is sustained by the evidence. There was willfulness or conscious indifference to consequences from which malice may be inferred. 80 Ark. 164; 58 Id. 136; 53 Id. 7; 58 Id. 136; 78 Id. 331. Here there was a willful violation of a statute and an indifference to results. 84 Ark. 248; 42 Id. 321. See also 36 Miss. 660; 58 Ark. 136; Hale on Damages, 213; 78 Ark. 331.

OPINION

MCCULLOCH, C. J.

The plaintiff instituted this action against defendant railway company to recover for injuries alleged to have been sustained while she was attempting to board one of the trains as a passenger. Negligence of the company's servants is alleged in failing to stop the train a sufficient length of time and at a proper place to enable her to board the train; and that in walking down the platform to get to the coach she stumbled over a rock or other obstruction and sustained severe physical injury. Willful misconduct on the part of the conductor is also alleged in refusing to back the train up to allow plaintiff to get aboard, and that on that account she was denied the privilege of riding to her destination and was forced to walk through the rain and mud a distance of three miles, to her great injury and inconvenience. The plaintiff prayed for compensatory and also for exemplary damages, and the jury awarded $ 1,000 for the first named element and $ 500 for the latter.

The occurrence which is the subject-matter of this controversy was at a flag station on defendant's road about three miles east of Argenta. The plaintiff had been working for several weeks at a plant near that station, and relinquished her employment there on the day her injury occurred. It was Saturday night, and she desired to board the train to come to Argenta. It was a local passenger train and passed this station a little before 8 o'clock, and the weather was bad--it was dark and rainy. There were several other passengers besides plaintiff, one of them a man with a lantern, who flagged the train as it approached. There was a small gravel platform, according to the evidence, and the front coach, which was the coach for colored passengers, stopped at this platform. Plaintiff's brother was with her, and they started to board the train, but the porter directed them to go on down to the last coach, and they started in that direction; and after walking a short distance, but before they reached the last coach, plaintiff stumbled over a log or some other obstruction and fell down, her side striking one of the ties, and severe injury was inflicted. The evidence tends to show, also, that the train moved out from the station before the plaintiff and her brother and the other white passengers could get down to the entrance to the coach where they would be admitted. The train pulled up a short distance--150 or 200 yards--and the man with the lantern again flagged it, when it was stopped and backed down a short distance and the man climbed aboard from the rear. The conductor was informed that there were other passengers, but he declined to back the train down again, stating, according to the testimony of one of the witnesses, that he had passengers aboard who had paid three or four dollars fare and that he would not back up again for six-cent passengers. Plaintiff and her brother walked to Argenta that night and were exposed to the bad weather. The evidence tends to show that the injury received by plaintiff from the fall was painful and severe.

The first assignment of error relates to the ruling of the court in giving one of plaintiff's instructions, which reads as follows:

"If you believe from the evidence that plaintiff, at the regular stopping place prepared for passengers by defendant, offered herself as such passenger and put herself under the control and direction of employees of defendant in charge of its train, then she was a passenger of defendant. The court instructs you further that a carrier of passengers owes its passengers the highest degree of care consistent with the reasonable and practicable operation of its train, and is liable for the smallest negligence which results in injury to its passengers, and if you believe from the evidence that by reason of the failure of the defendant to exercise such high degree of care for protection of plaintiff after she offered herself as a passenger on defendant's train, she received the injury alleged, then defendant is liable, and your verdict should be for plaintiff."

We are of the opinion that this instruction placed upon defendant too high a burden of care, and was erroneous. The injury of plaintiff resulting from the fall, if from any negligence at all, was caused by the failure of the defendant to provide a proper station platform to enable passengers to board the trains, and the rule in such cases is, as we have said, that the railroads are required only to "exercise ordinary care in providing station...