Choctaw, Oklahoma & Gulf Railroad Company v. Hickey

• Decision Date: 04 February 1907
• Citation: 99 S.W. 839,81 Ark. 579
• Parties: CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. HICKEY
• Court: Arkansas Supreme Court

99 S.W. 839

81 Ark. 579

CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. HICKEY

Supreme Court of Arkansas

February 4, 1907

Appeal from Saline Circuit Court; Alexander M. Duffie, Judge affirmed.

Judgment affirmed.

E. B Pierce and Buzbee & Hicks, for appellant.

1. The court erred in overruling appellant's motion to strike out the amendment to the complaint because (1) it set up a new and distinct cause of action which (2) did not exist at the time the original complaint was filed; (3) the facts stated in the amendment were not material to the case set up in the original complaint; (4) the additional cause of action cannot be joined with that in the original complaint because (a) each kind of action does not affect all the parties to the action, and (b) both causes of action do not belong to one of the classes allowed to be joined. Kirby's Dig § 6081; Id. §§ 6285, 6289; Id. § 6079; 96 S.W. 143; 53 Ark. 117; I Enc. Pl. & Pr. 547; Id. 209; 23 Ark. 474; 34 Ark. 144; 61 Ark. 253; 59 Ark. 441; 36 Ark. 465; 75 Ark. 465; 7 S.E. 58; 10 S.E. 923; 114 F. 116; 1 L. R. A. 777; 49 L. R. A. 285; 52 Id. 414; 87 N.W. 743; 73 N.W. 1077; 13 Ky. 228; 48 N.W. 44; 19 So. 209.

2. A railroad company discharges its duty toward its passengers when it announces the departure of its train a sufficient length of time before starting it to enable the passengers by the use of reasonable diligence to get aboard, and the conductor has the right, when that time has elapsed, to presume without further inquiry that all who desired to take passage are aboard, and to start the train. 54 Ark. 28; 73 Ark. 548; 3 Thompson's Comon Law of Negligence § 2855; 24 Am. & Eng. R. R. Cas. (N. S.) 922 note; 47 Id. 533; 50 S.W. 580; 48 Id. 58; 8 SO. 711; 7 S.W. 3; 33 Am. & Eng. R. R. Cas. 520; 21 Id. 374; 26 Id. 162; 15 S.E. 534; 50 Mo.App. 561; 18 Wis. 185; 20 Wis. 362; 71 Ga. 710; 8 So. 86.

An instruction telling the jury that it was the duty of the employees of defendant to exercise reasonable care in holding said train a reasonable time for Hickey to board, etc., imposed too great a duty on appellant.

Instruction numbered 7, given for appellee, imposed a duty on appellant not required by law, and left the jury to find facts not supported by the evidence. 74 Ark. 19; 79 Ark. 225 If the conductor had known of Hickey's lameness, he also had the right to presume that he would so time his movements as to get aboard within the time allowed for the stop, and appellant's employees were under no obligation to act as nurses or attendants upon him. 42 Miss. 607.

Conceding that the eighth instruction given for appellee is the law, still the issue was not fairly submitted to the jury because the court refused to give instructions as to what was or was not negligence in the movement or handling of appellant's trains, or to tell them the effect of evidence showing a proper handling of its trains. 69 Ark. 137; 90 S.W. 999; 96 S.W. 116.

3. The verdict is not supported by the evidence; or, if it can be said that there is evidence to support the verdict, it is so inconsistent, and unreasonable, and so completely contradicted both by testimony and physical facts as to make the verdict clearly contrary to the weight of the evidence and to shock the sense of justice. 26 Ark. 310; 34 Ark. 632; 70 Ark. 385, 79 Ark. 608.

Wood & Henderson, for appellee.

1. There was no error in refusing to strike out the amendment to the complaint. 23 La.Ann. 612; 36 Ark. 17; 11 Ark. 720; 26 Ark. 336; Id. 408; 42 Ark. 57; Kirby's Dig. §§ 6145, 6148; 1 Enc. Pl. & Pr. 464; 60 Ark. 526; 58 Ark. 504; 90 Ala. 470; 120 Ind. 40; 13 Tex. 464; 21 S.W. 1011; 24 S.W. 533; 18 S.W. 734; 13 S.W. 34; 34 Tex. 478; 31 N.W. 656; 1 Enc. Pl. & Pr. et seq.; Id. 552.

If it should be held that the amendment was not proper, appellant waived its objection by answering instead of standing on its motion to strike. 30 Ark. 684; 65 Ark. 495; 44 Ark. 205; 43 Ark. 230; 1 Enc. Pl. & Pr. 573; 21 S.W. 851; 15 S.W. 981; 64 N.W. 673; 51 N.W. 10; 29 A. 462; 9 How. Pr. 193; 82 Cal. 604.

2. If a railroad company knows, or by the exercise of reasonable care ought to know, that a passenger is in the act of getting on or leaving a train, and in such position as to be liable to suffer injury from the moving of the train, it is guilty of contributory negligence in causing the train to move. 6 N.W. 486; 8 So. 86; 6 N.E. 577; 46 P. 768; 29 Am. St. Rep. 719; 6 Cyc. 613; 5 Am. & Eng. Enc. of L. (2 Ed.), 577, 578; 73 Ark. 548; 75 Ark. 211.

There is sufficient evidence to support the verdict.

OPINION

BATTLE, J.

On the 23rd day of May, 1902, L. H. Hickey, in his lifetime, commenced an action against the Choctaw, Oklahoma and Gulf Railroad Company, in the Garland Circuit Court. Plaintiff stated his cause of action as follows:

"On the 9th day of January, 1902, plaintiff was on one of defendant's trains on a through ticket from Memphis, in the State of Tennessee, to the city of Hot Springs, in Arkansas, and while such a passenger the train upon which he was traveling stopped at Little Rock, Arkansas, for the purpose of allowing the passengers on the train to procure dinner.

"That plaintiff left said train for the purpose of procuring dinner, and upon his return to said train, and while in the act of boarding the same, while upon the first step leading into the coach on said train, the agents, employees and servants of defendants in charge of and operating said train, wrongfully, negligently, unlawfully and carelessly caused said train to move by a sudden jerk, which caused plaintiff to fall from said step violently to the ground and underneath said train; that plaintiff at the time was in the exercise of due care, and he was thrown or caused to fall from said step, before he was able to get upon said car in the manner and form as aforesaid, by the wrongful, careless, and negligent acts of the agents and employees of defendant in starting said train; that by said fall the plaintiff sustained severe personal injuries to his back and other portions of his body; that in falling he in some way rolled under the edge of the train as it was moving along, in such position that he could not get out from under said car while the same was in motion; that some bystander halloed at him to lie down close to the ground if he wished to save his life, which injunction he obeyed, and the entire train passed over him in that position; that plaintiff's position was such that, if he had moved in an effort to get out, some portion of the car would have caught his clothing, which would have evidently dragged him to death; that plaintiff realized this fact and remained in that position under the edge of the cars until the entire train passed over him; that plaintiff, during the time that said train was thus passing over him, expected every minute to be caught by some portion of the car and to be killed, and during such time he suffered untold mental agony and pain; that, by reason of the wrongful, careless and negligent acts of the defendant as aforesaid, plaintiff has been damaged in the sum of ten thousand dollars."

The defendant answered and denied the allegations of the complaint. On the 20th day of November, 1903, the issues in the case were tried in the Garland Circuit Court, and a verdict was rendered in favor of the plaintiff, which was set aside on a motion for a new trial. Subsequently the plaintiff died, and the action was revived in the name of D. H. Hickey, as administrator of L. H. Hickey, deceased, and he filed an amendment to the complaint as follows:

"That the said L. H. Hickey died in the city of Lexington, and county of Fayette, in the State of Kentucky, on the 7th day of December, 1903, and that this plaintiff, D. H. Hickey, was duly appointed administrator of the estate of the said L. H Hickey by the county court of said Fayette County, in the State of Kentucky, on the 21st day of December, 1903, a day of the December term, 1903, of said county court, and that he is now the duly appointed, qualified and acting administrator of the estate of the said L. H. Hickey, deceased; that the said L. H. Hickey left surviving him at his death, Ada Hickey, as a widow, and Hickey, his son and only heir; that the said Hickey at the time of the death of the said L. H. Hickey, was five years old; that the death of the said L. H. Hickey resulted from and was caused by the injuries received by him in falling from the train on the 9th day of January, 1902, in the manner as set out and stated in the complaint herein, and resulted by reason of the wrongful and negligent acts and conduct of the defendant and its employees, as stated in said complaint; that the death of the said L. H. Hickey was produced and brought about by the negligent acts and conduct of the defendant and its employees as set out in said complaint; that after receiving said injuries, the said L. H. Hickey continued to suffer excruciating pain, both of body and mind, as stated in said complaint, and the amendment thereto filed on November 19, 1903, until the 7th day of December, 1903, when he died.

"That in the month of May, 1902, soon after said injuries were received by the said L. H. Hickey, he became paralyzed therefrom and totally blind, as stated in his said amended complaint filed November 19, 1903, and remained in that helpless condition, suffering and languishing, until the time of his death; that during the lifetime of the said L. H Hickey, and prior to the receipt of said injuries, he was an active, industrious man, a devoted father and husband; that he provided for his family a comfortable home and furnished them with all things necessary for their pleasure and happiness in life; that he was a man of good moral habits, and devoted all of his earnings to the benefit of his said...