Kansas City Southern Railway Co. v. Watson

• Decision Date: 26 February 1912
• Citation: 144 S.W. 922,102 Ark. 499
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. WATSON
• Court: Arkansas Supreme Court

144 S.W. 922

102 Ark. 499

KANSAS CITY SOUTHERN RAILWAY COMPANY v. WATSON

Supreme Court of Arkansas

February 26, 1912

Appeal from Little River Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

Read & McDonough, for appellant, Kansas City Southern Railway Company.

1. In its instructions the court erred in its definition of a passenger. 10 Fed. Cas. 464; 55 Ala. 387. The use of the word "protection" was error. 55 Ala. 387; 176 Pa.St 341; 114 U.S. 587; 6 Words & Phr. pp. 5741-2.

2. Plaintiff was not a passenger on the K. C. So. Ry. Co. and instruction 2 was reversible error. The K. C. owed no duty to plaintiff as a carrier. 90 Ark. 378; 94 Id. 15.

3. The verdict is excessive.

Sain & Sain, for appellant, Memphis, Dallas & Gulf Railroad Company.

1. The peremptory instruction for this appellant should have been given. This appellant owed no duty except to use ordinary care not to injure appellee. There is no proof that any act nor conduct of any employee of this company had any connection with the injury. 90 Ark. 378; 94 Id. 15. A carrier is only bound to the exercise of ordinary care for the protection of persons while in and about its stations and is bound to no higher degree of care for the protection of persons who may be lawfully there on its premises, other than in the capacity of passengers. 96 Ark. 311; 100 Ark. 433.

2. The verdict is excessive. Appellee lost no time, paid out no money, and was very slightly injured.

J. S. Lake, J. C. Head, J. S. Steel, and James D. Head, for appellee.

1. If the use of the word "protection" was error, the court's attention should have been called to it. 81 Ark. 187; 83 Id. 61.

2. Where connecting carriers jointly employ a common agent in prosecution of a joint enterprise as carriers, they are jointly liable for his defaults. 76 Ark. 589; 58 S.E. 913; 2 White, Personal Injuries on Railroads, § 627; 2 Hutch. Car., § 917, 938; 3 Thompson, Negl., § 2697, 2711; 140 S.W. 708; 94 Ark. 15; 88 F. 197.

3. A railroad company owes no greater duty than to protect its passengers while in and about its stations, as to whom, ordinary care is sufficient. 140 S.W. 708; 94 Ark. 15; 88 F. 197.

4. There was no error in the instructions. 52 Ark. 248; 57 Id. 306; 84 Id. 241.

OPINION

FRAUENTHAL, J.

This is an action instituted by D. M. Watson against the Kansas City Southern Railway Company and the Memphis, Dallas & Gulf Railroad Company to recover damages for an injury which the plaintiff alleged he sustained by reason of the negligence of both defendants. The alleged injury occurred upon the station platform at Ashdown. At this place there was only one depot, which was owned by the Kansas City Southern Railway Company but which was used by both defendants. At this depot the trains of both defendants stopped and took on and discharged passengers, and agents of both companies sold tickets there for their respective trains. On the day the injury was received, plaintiff purchased a ticket at this depot from the agent of the Memphis, Dallas & Gulf Railroad Company. It was about the time for the departure of his train, and plaintiff went from the waiting room to the station platform in order to go to said train, which was located on the second track. At this time a local freight train of the Kansas City Southern Railway Company was standing on the first track, and freight was being unloaded therefrom. As plaintiff passed over the station platform, he stopped a few moments to talk to a friend, and, while thus engaged, a railroad employee pulled a baggage truck along the platform and suddenly dropped its tongue. The truck was going with such rapidity that it struck the plaintiff on his leg, just above the ankle, and painfully injured him. The testimony tended to prove that when plaintiff saw the truck thus turned loose, he sprang aside, upon another truck which was standing nearby on the platform, in order to escape from the impending injury, and was there struck by the truck. The testimony on the part of the defendants tended to prove that the employee who was in charge of this truck was in the service of the Kansas City Southern Railway Company. A verdict of $ 150 was returned in favor of plaintiff and against both defendants, and both of them have appealed from the judgment rendered thereon.

1. It is urged by counsel for the Memphis, Dallas & Gulf Railroad Company that the injury complained of was not caused by one of its employees, but by a servant who was solely in the employ of the other railroad company, and on this account it was not liable for the injury. The plaintiff had purchased a ticket from this defendant in order to immediately take passage upon one of its trains. In going to his train, he was passing over the station platform, and was there injured. The depot and station platform were used jointly by both defendants. At this time the plaintiff was a passenger of the Memphis, Dallas & Gulf Railroad Company, and it owed to him the duty to exercise ordinary care to protect him from injury while on and passing over the station platform which it furnished for plaintiff to proceed upon to his train. St Louis, I. M. & S. Ry. Co. v. Woods, 96 Ark. 311, 131 S.W. 869; Hutchinson on Carriers, § 935; 3 Thompson on Negligence, § 274. It is well settled that it is the duty of a railroad company to keep in safe condition its station platform where passengers and those who have purchased tickets with a view to take passage on its trains will ordinarily go, and for failure to exercise ordinary care in that regard the company is liable for any consequent injury to one of its passenger. Texas & St. L. Ry. Co. v. Orr, 46 Ark. 182; Arkansas Midland Rd. Co. v. Robinson, 96 Ark. 32, 130 S.W. 536. This duty not only requires the railroad company as a carrier of passengers to exercise ordinary care to see that the station platform itself is in safe condition and free from any defect from which a consequent injury might be reasonably expected to result, but also to keep such station platform free from obstructions and dangerous instrumentalities, especially at the time when passengers are expected to go to and from its cars. In the case of Warren v. Fitchburg Railroad, 90 Mass. 227, this duty is thus well expressed: "It is the duty of a railroad company to afford to the passengers whom they undertake to carry in their cars a reasonable and safe opportunity to pass from the room or building in which they receive passengers for transportation to the cars. * * * They should provide a safe and convenient way and manner of access to the cars, and in preventing the interposition of any obstacle or obstruction which would reasonably impede him or expose him to injury while proceeding to his car to take his seat." In 2 White on Personal Injuries on Railroads, § 627, it is said: "The care exacted by the law on the part of the carrier to avoid injury to its passengers include the duty to exercise reasonable care to avoid striking passengers with baggage trucks or similar vehicles used on station platforms where passengers are allowed or invited to congregate to take cars or to alight from trains." A passenger, while passing over a station platform, which is provided by the carrier for the purpose of going to his train, has a right, while in the exercise of ordinary care for his own safety, to require the servants of the carrier, or those persons who are in service thereon by permission of such carrier, to exercise ordinary care not to injure him while handling trucks and baggage upon such platform. In the case at bar, the station platform was used by both defendants for the purpose of enabling passengers of each railroad company to go to their respective trains. It became the duty of both of them to keep the station platform in safe condition and free from obstructions or dangerous instrumentalities. Neither was absolved from this duty to its passengers, and the Memphis, Dallas & Gulf Railroad Company, which occupied the relation of carrier to the plaintiff, was liable to him for an injury received by him in consequence of the unsafe condition of the station platform or of the negligent manner in which employees of either railroad company handled the trucks, baggage or other instrumentalities upon such platform. 3 Thompson...