Huckaby v. St. Louis, Iron Mountain & Southern Railway Company
| Decision Date | 07 June 1915 |
| Docket Number | 39 |
| Citation | 177 S.W. 923,119 Ark. 179 |
| Parties | HUCKABY v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Grant Circuit Court; W. H. Evans, Judge; reversed.
STATEMENT BY THE COURT.
This cause is revived here in the name of Amis, appellant's administrator, because of her death pending the appeal.
Plaintiff brought this suit for personal injuries alleged to have been received while she was attempting to board defendant's train at Alexandria, La., alleging that she started to step from the box to the lower step of the car; that it lurched suddenly backward and threw her against the steps and as she straightened up it lurched forward and caught her foot in the space between the tread of the lowest step and the rise between the steps and that she fell backward, straining and injuring her leg permanently.
Her testimony tended to support the allegations of the complaint and physicians testified that she had sustained severe injuries to her left foot.
On the other hand, the testimony for the railroad company tended to show that there was no jerk or lurch of the train whatever during the time passengers were getting on, on the occasion when plaintiff claimed to be injured and none of the crew saw her falling and that no complaint was made that she had received an injury.
Her reputation was shown to be bad, and the proof also tended strongly to show that the steps of the coach were solid metal, with no space whatever between the tread and the rise and that there was no defect therein and no place where her foot could have been caught or fastened.
Other witnesses testified that she had received an injury to her foot at the town of Eros, La., where she stepped through a bridge or defective sidewalk, or into a pile of refuse of some kind and that she was crippled thereby.
The court charged the jury, giving over appellant's objection instructions numbered 2, 14 and 15, as follows:
"2. The burden is upon the plaintiff in this case to prove all of the material allegations in her complaint, and before she can recover, she must prove these by a preponderance of the evidence; that is, a greater weight of the evidence, and unless she has done so, you must find for the defendant.
14. You are instructed that unless plaintiff has shown by a preponderance or greater weight of the evidence that the injuries alleged in her complaint are the result of some negligent act of the defendant, its agents or servants, then she can not recover, it matters not how she may have received her injuries, or what the extent of her injuries is.
15. You are instructed that even though you may believe from the evidence that plaintiff fell while she was attempting to board the train, and even though you may further believe that she was injured by the fall; yet this is not sufficient to entitle her to recover, unless she go further and prove by a greater weight of the evidence that the cause of such fall was some act of negligence on the part of the railway company, and if she fell from some other cause other than some act of negligence, on the part of the railway company then she can not recover, and your verdict will be for the defendant."
And also 12 and 13, as follows:
The jury returned a verdict against plaintiff, and from the judgment thereon this appeal is prosecuted.
Judgment reversed and cause remanded.
Wynne & Harrison, for appellant.
1. A prima facie case of negligence is made against a railway company by proof of an injury caused by the operation of its train, and thereupon the burden is upon the company to show that it was not negligent. Kirby's Dig., § 6773; 73 Ark. 548; 81 Id. 579; 83 Id. 221; 87 Id. 581; 87 Id. 308; 113 Ark. 265. The instructions placed the burden on plaintiff to show negligence. This was error.
2. Instruction No. 12 was erroneous and prejudicial. 87 Ark 581-308; 215 F. 37; 108 La. 423; 111 La. 395, etc.
3. Instructions 11 and 13 are abstract. 101 Ark. 537.
E. B Kinsworthy, W. R. Donham and T. D. Crawford, for appellee.
1. The burden was on plaintiff to prove negligence. 16 Cyc. 934-5; 74 Ark. 607; 57 Id. 136; Kirby's Dig., §§ 3106-7.
2. To hold a carrier liable for injury to a passenger by reason of a jolt of the car, or jerk, plaintiff must show that it was caused by the carrier's negligence. 7 L. R. A. (N. S.) 1076. 73 Ark. 548 does not apply here.
3. The twelfth instruction was not erroneous. While it is the duty of the carrier to use the highest degree of care practicable, it is not responsible for injuries from jerks and bumps of cars usually incident to such trains when operated with such care. 2 Moore on Carriers, p. 1220; 58 S.W. 526; 72 Id. 717; 36 Id. 247; 5 N.Y. 63; 135 Ala. 417; 7 L. R. A. (N. S.) 1078.
OPINIONKIRBY, J., (after stating the facts).
The rule is so well established in this State as to be no longer questioned that a prima facie case of negligence is made out against a railroad company by proof of an injury to a passenger caused by the operation of its train. Section 6773, Kirby's Digest; Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548, 85 S.W. 94; K. C. Sou. Ry. Co. v. Davis, 83 Ark. 217; St. Louis, I. M. & S. Ry. Co. v. Stell, 87 Ark. 308, 112 S.W. 876; St. Louis & S. F. Rd. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106.
And the rule is the same when the injury results from the operation of the train to the passenger while boarding or alighting from the train. St. Louis, I. M. & S. Ry Co. v. Stell, supra; Kansas City S. Ry. Co. v. Davis, supra; St. Louis, I. M. &...
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