Appeal from Circuit Court, Clark County; Jacob M. Carter, Judge.
BATTLE, J.
J. W. Huddleston, complaining of the St. Louis, Iron Mountain & Southern Railway Company, says:
"That on the ______ day of March, 1908, a certain fast north-bound passenger and mail train, commonly known as No. 28, passed said station (Arkadelphia) at a high rate of speed, and from which train it was the practice and custom of defendant, and had been for a long time, to permit the mail clerk or agent to throw or eject from the mail car, which was attached to, and a part of, said train, a mail pouch or bag onto the platform of said station, in a manner and at a place which subjected the persons, or person, who might chance to be lawfully upon said platform to hazard and danger of injury.
"That said plaintiff being then and there lawfully standing on said platform of defendant's depot, on said date aforesaid, in and about his proper business, and in the exercise of due care, and without negligence or fault on his part, yet the defendant, not regarding its duty to the plaintiff, and through the negligence of its servants, permitted and allowed said mail pouch or bag to be ejected from said north-bound passenger and mail train aforesaid while in motion, and while running at a high rate of speed, and at such a place on said platform that it struck plaintiff on the face and body, knocking him to the ground, breaking and fracturing two ribs and scarring and disfiguring his face and head.
"By reason of said injuries the plaintiff became sick, and was confined to his bed and home for some weeks, and has been disabled from attending to his business, and incurred an expense of ______ dollars for medical service and nursing, and has suffered great pain, to his damage in the sum of $2,000."
The defendant, St. Louis, Iron Mountain &
Southern Railway Company, denies that the plaintiff was injured by its carelessness or improper conduct, or the carelessness of mail agents, but alleges that he was injured by his own contributory negligence.
The facts of the case are substantially as follows: The defendant has a railway station on its line at Arkadelphia in this state. The mail agents on its trains for a long time have been in the habit of throwing mail sacks from the trains, while moving rapidly, on the platform at this station, where persons lawfully there frequently stand. There were no notices, warning passengers to look out for mail sacks thrown from the trains, posted there, or any other protection provided by the defendant against injuries of persons on the platform by such sacks. On the 21st day of March, 1908, about noon, plaintiff, Huddleston, went to the depot at Arkadelphia to take the first train going to Little Rock. He did not know the times of the arrival and departure of trains. When he reached the depot, the window of the ticket office was closed, and he purchased no ticket, at that time, or learned when a train would arrive. He remained about 15 minutes, and then went a short distance from the depot to a "lunch stand" to get a lunch, and while eating heard a train coming, and ran out and onto the track and flagged it with his hat, and then walked onto the platform and stood near the door of the waiting room for white passengers, and while there a train passed, moving very rapidly, and a mail agent threw a sack therefrom while it was in rapid motion, which struck him, knocked him down, and severely injured him, and the train moved on without checking its speed.
W. L. Craig testified: "Was mail clerk on defendant's train in March, 1908, and was on train that the mail was thrown off that hit Huddleston. Train was running pretty fast, and there was another man on train with me, and he made the catch of the crane and picked out the place, and when he gave me the word to throw it, I threw; always try to select place where there are no passengers, and where it will not injure any one. We select the place in front and try to throw the mail in time so as to strike in this place; am paid and controlled by the government."
Garrett testified: "Am railway postal clerk, and remember the time when plaintiff was injured. We were running late that day, going at a pretty fast rate; takes quick work to make the catch and throw off the mail; asked Craig to make the delivery while I made the catch. I was to pick out the place. I looked down the track. There was people all along in north of the depot, and I told him to hold it until we passed the depot, and about the time we got to the north end of the depot I told him to throw it, and about this time I saw a man close — just did see a man on the ground make efforts like he wanted to get on, and here the pouch and sacks both hit him. The first I saw of this man he was right at the side of the train, just about the time I gave the orders to throw; looked forward and saw this was the only place, unless we carried it above the tank."
The plaintiff requested, and the court refused, to instruct the jury as follows:
"(1) If...
