Hodge-Downey Construction Company v. Carson

• Decision Date: 30 October 1911
• Citation: 140 S.W. 708,100 Ark. 433
• Parties: HODGE-DOWNEY CONSTRUCTION COMPANY v. CARSON
• Court: Arkansas Supreme Court

140 S.W. 708

100 Ark. 433

HODGE-DOWNEY CONSTRUCTION COMPANY v. CARSON

Supreme Court of Arkansas

October 30, 1911

Appeal fro Drew Circuit Court; Henry W. Wells, Judge; reversed.

STATEMENT BY THE COURT.

Plaintiff sued the defendant for damages to a wagon and harness alleging that it owned and operated a system of gravel trains, locomotives and cars and hauled and distributed gravel from its pit near Monticello, in Arkansas, along the tracks of the Iron Mountain railroad. That the plaintiff was engaged in the sale of meats, and sent for delivery some meat to the camp at said gravel pit; while the delivery was being made, the defendant, through its agents and employees negligently and carelessly allowed a car to run down the tracks, near which plaintiff's delivery wagon and horse hitched thereto were standing, and, without any fault or carelessness on the part of plaintiff, defendant, through its careless handling of said car, frightened plaintiff's horse, causing him to run away and to greatly injure himself and the harness and to destroy the wagon. That defendant was further negligent in not having brakes on said car, and that if it had been properly equipped with brakes, defendant's employees could have stopped it and prevented the fright to plaintiff's horse and the consequent damages to his property. Plaintiff prayed damages in the sum of $ 65. Defendant denied any negligence on its part, and alleged assumed risk and contributory negligence.

The testimony tended to show that plaintiff's son took some meat in the delivery wagon out to the camp at the gravel pit leaving his horse near the end of a switch, upon which loose cars that were to be loaded with gravel were banked and held, at a place which was customarily used by those coming to the camp for the sale and delivery of produce there. That he left the horse in charge of Bert Dumas, who was holding him while he delivered the meat. Returning, he saw that a car had gotten loose and started down the hill toward the horse. He ran to the horse, turned him around, and the horse, frightened by the noise and approaching car, broke loose and ran away, injuring himself, the wagon and harness. It seems that the moving car was the dining or boarding car, left standing nearest the end of the switch hard by the commissary where supplies were kept. It was not disclosed whether or not there were any brakes upon this car, which was going slowly, just a little more than moving, and one or two persons tried to stop it by putting chunks under the wheels. There was testimony as to the amount of damages.

The court, among other instructions, gave for the plaintiff, over the defendant's objections, the following:

"The court instructs the jury that, in the operation of its trains and cars, for the protection of persons and property about its yards, defendant is held to the greatest degree of care; and if you find from the evidence that the car of defendant frightened plaintiff's horse, causing it to run away, and that said car was not equipped with brakes, or that the brakes on the car were not in working order, and that defendant, through its agents and employees, knocked or bumped said car and started same to rolling towards plaintiff's horse, and that plaintiff, or his agent in charge of said horse, did all that a reasonable and prudent person could do to prevent the injury, you will find for the plaintiff, in such damages as the evidence shows he sustained."

The jury returned a verdict for plaintiff, assessing his damages at $ 35, and from the judgment thereon defendant appealed.

Judgment reversed and cause remanded.

R. W. Wilson, for appellant.

The fourth instruction is erroneous because it is abstract and because it is an incorrect statement of the law. A railroad company is held only to an ordinary degree of care toward persons and property about its premises. Hutchinson Carriers, 935,941; 3 Thompson,...