Cleveland v. Pine Bluff, Arkansas River Railway Co.

• Decision Date: 17 February 1913
• Citation: 154 S.W. 191,107 Ark. 93
• Parties: CLEVELAND v. PINE BLUFF, ARKANSAS RIVER RAILWAY COMPANY
• Court: Arkansas Supreme Court

154 S.W. 191

107 Ark. 93

CLEVELAND v. PINE BLUFF, ARKANSAS RIVER RAILWAY COMPANY

Supreme Court of Arkansas

February 17, 1913

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

STATEMENT BY THE COURT.

Appellant instituted this suit against appellee to recover damages for injuries received by her while riding upon one of appellee's hand-cars on its line of railroad. The facts shown by the appellant and her witnesses are substantially as follows:

Appellant was a midwife and had been nursing the wife of A. S. Desha, a section foreman on appellee's line of railroad. On the day she was injured she was at Mr. Desha's house and deciding to return home, Mr. Desha had the section hands to bring out the hand-car and take her home on it. She started home on the hand-car with the section hands a short time after dark. On the way home a motor car, which was being run on appellee's line of railroad, ran into the hand-car and severely injured appellant. Several witnesses testified that it was the custom of people living in the neighborhood to ride upon the hand-car and that this custom had been in existence for over eight years. They said after work hours the people in the neighborhood would ride on the hand-cars in going to lodges, to festivals and to other places for their own pleasure and business. Another witness stated that this custom prevailed to the extent that the hand-car was used for this purpose during any hour of the day or night. Most of the testimony, however, was to the effect that it was so used after work hours. Another witness testified that on a few occasions he had hired the hand-car to go to places upon his own business.

The testimony for appellee is substantially as follows: Appellee had owned and controlled the railroad in question for about five years. The road was a branch road of the St. Louis Southwestern Railway Company, and was some fifteen miles long. The hand-cars were for the use of the section foremen and their crews. The railroad company had a rule for the operation of the hand-cars by section foremen and this rule was in force at the time appellant was injured. This rule provides that the hand-cars must be pushed with care and must not be used except in service of the company without special authority from the roadmaster or assistant roadmaster, and no one is allowed to ride upon the hand-car except employees in the performance of duty, unless authorized by written order and section foremen are to keep the hand-cars locked or so secured that they can not be moved. Not to be used on Sunday except for inspection of track and in case of necessity. When obliged to run hand-cars after dark a red light must be displayed. It was also against the rules to permit a hand-car to be sent out after working hours except on the business of the company. The superintendent and his assistant, the roadmaster and his assistant, all testified that they had never authorized any section foreman to use a hand-car at night or after work hours and that they did not know of them having been so used. The roadmaster testified that he was accustomed to go over the road in question and spent one night on it about once a month. That during these trips he had never heard the hand-cars running at night and did not see them being used contrary to the rules of the company.

A. S Desha, the section foreman, testified: I was familiar with the rules concerning the use of hand-cars and knew that I had no authority to use the hand-car or to permit it to go out on the track after working hours. Such use would be a violation of the rules unless it was for the company's business. The working hours are from seven to six. I sent her (appellant) home on the night in question on the hand-car just for courtesy and to accommodate her. I had no authority from any of the officers over me to take the car out that night.

The testimony of appellant shows that the station agent knew that the people in the neighborhood were accustomed to ride on the hand-cars after working hours, and the testimony on the part of appellee showed that the station agent had no control over the use of the hand-cars. Other evidence will be referred to in the opinion.

The jury returned a verdict for appellee and to reverse the judgment rendered appellant prosecutes this appeal.

Judgment affirmed.

A. H. Rowell, for appellant.

S. H. West and Bridges & Wooldridge, for appellee.

OPINION

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

The instructions of the court took away from the jury every question of fact except that based upon the doctrine of discovered peril, and this action of the court is assigned as error by counsel for appellant. The undisputed evidence shows that the railroad company did not operate its hand-cars for the carriage of passengers and that the rules of the company forbade their use for that purpose. It is conceded by counsel for appellant that a person, taking a ride on the hand-car with the foreman's assent merely could not be regarded as a passenger and that under such circumstances the presumption would be that he was not...