Kansas City Southern Railway Company v. Teater
| Decision Date | 01 May 1916 |
| Docket Number | 367 |
| Citation | 186 S.W. 294,124 Ark. 1 |
| Parties | KANSAS CITY SOUTHERN RAILWAY COMPANY v. TEATER |
| Court | Arkansas Supreme Court |
Appeal from Polk Circuit Court; Jefferson T. Cowling, Judge affirmed.
Judgment affirmed.
James B. McDonough, for appellant.
1. A verdict should have been directed for defendant. The finding of the jury is in the very teeth of the physical facts. It was impossible for plaintiff's foot to have been caught between the bumpers. The evidence shows that he was sitting on the step with his leg hanging down and his foot caught in a cattle guard. All the evidence must be considered together. 96 Ark. 500; 114 Id. 112. No negligence on the part of the company is shown. 221 F. 907; 84 Ark. 555; 108 Id. 578. The credibility of a witness is an issue of fact for the jury, but the sufficiency of the evidence is a question of law for the court. 107 Ark. 158.
2. There was error in giving and in refusing instructions. Instructions should submit to the jury the issues in the case. 76 Ark. 333; 63 Id. 177; 70 Id. 441. The evidence does not show that the injury was caused "by the running of the train." 121 Ark. 295. The emphasizing of instructions is error. 43 Ark. 184; 59 Id. 143. It is not negligence to fail to furnish a seat to a passenger when cars are crowded. If there was even standing room inside the car it was plaintiff's duty to remain inside, if he went outside without reasonable cause and was injured he can not recover. 96 Ark. 206; 87 Id. 243; 95 Id. 108; 99 Id. 415; 96 N.E. 665; 113 N.Y.S. 636. Plaintiff was duly warned of the danger of riding outside, and was injured--he can not recover. 76 Ark. 69; 71 Id. 55; Elliott of Railroads, §§ 1154, 1162, 1069, 1628n; Hutchinson on Carriers, §§ 898, 959. It was error to refuse defendant's instructions.
Chas A. Zweng and Elmer J. Lundy, for appellee.
1. Review the instructions given and refused and contend that there is no error. 121 Ark. 295; 181 S.W. 135; 224 F. 896; 224 Id. 908.
2. This case is governed by 93 Ark. 240; 102 Id. 532; 107 Id. 158; 224 F. 896. The instructions correctly state the law and the evidence sustained the verdict.
The plaintiff, Jewel Teater, is a boy about fourteen years of age and instituted this action by his next friend against the Kansas City Southern Railroad Company to recover compensation for personal injuries alleged to have been sustained by reason of negligence of the company's servant while he was a passenger on one of its trains. The plaintiff was a little over thirteen years of age when the injury occurred and he was a passenger on an excursion train going from Mena to Cove, in Polk County, Arkansas.
The plaintiff alleged in his complaint, and undertook to prove, that the train was overcrowded and that he could not obtain a seat in the coach to which he was assigned, and was told to go to another coach, and while passing over the platform between the two coaches his foot was caught between the two bumpers of the coupling and his leg was broken. The particular charge of negligence upon which the case was tried is that "the defendant was negligent in that it did not have protection over said couplings or bumpers to prevent an open space between said cars when being operated." The plaintiff testified that when he boarded the train and went into the coach there was no unoccupied seat and that he started to go into another car where some of his companions had gone; that when he got across the platform to the door of the other coach he met the other boys, who told him that there was no place for them in the coach, and that he turned to go back into the car from which he had come, and that as he started across the platform his foot was caught between the bumpers. Another witness testified that there was sufficient space between the couplings on the two connecting coaches for the boy's foot or leg to drop through. The evidence showed that there was a double compound fracture of the bones in the leg.
The defendant denied the charge of negligence and alleged, on the contrary, that the plaintiff was injured by reason of his own negligence in getting down on the lower step of the coach and hanging his feet down so that one of them caught in a cattle guard over which the train was passing and caused a fracture of his leg. The evidence adduced by the defendant tends very strongly to establish the fact that it was impossible for the plaintiff to have been injured in the manner which he described, and that he was injured, in fact, by getting down on the lower step of the car and letting his feet drag so that one of them struck the cattle guard. Defendant's testimony tends to establish the fact that there was no exposed opening between the ends of the two bumpers, but that the connection was covered with an iron plate so that it would be impossible for there to exist an exposed opening. It appears to us that the testimony preponderates considerably in defendant's favor, yet it can not be said that there was no evidence to support the plaintiff's contention. It was legally sufficient to warrant a submission of the issue to the jury.
The court submitted the case to the jury on instructions on its own motion, stating the law generally on the subject of negligence and contributory negligence, and also gave three instructions requested by plaintiff and the following two instructions requested by the defendant:
There were objections to each of the instructions given by ...
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