Kansas City Southern Railway Company v. Worthington

• Decision Date: 20 November 1911
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. WORTHINGTON
• Court: Arkansas Supreme Court

141 S.W. 1173

101 Ark. 128

KANSAS CITY SOUTHERN RAILWAY COMPANY v. WORTHINGTON

Supreme Court of Arkansas

November 20, 1911

Appeal from Polk Circuit Court; Jeff T. Cowling, Judge; affirmed.

Judgment affirmed.

Read & McDonough, for appellant.

1. As a matter of law, there was neither allegation nor proof of any negligence on the part of appellant proximately causing the injury. The complaint itself fails to state a cause of action, in that its allegations are such as to leave it a matter of conjecture whether the injury was due to plaintiff's own negligence or to the negligence of the defendant. Courts and juries are not permitted to fix liability upon a carrier through mere speculation and conjecture. 131 S.W. 44; 122 N.Y. 292; 132 S.W. 462; 1 Thompson on Neg. §§ 404 and 7395; 145 F. 327; 105 Wis. 311; 15 N.W. 70; 90 Wis. 332; 101 Wis. 371; 181 F. 91; 200 U.S. 480; 115 S.W. 890. This is not a case for the application of the statute, Kirby's Digest, § 6773 making an injury by a running train prima facie negligence. The doctrine that negligence is presumed from the fact of the injury does not apply where the accident or injury unexplained by attendant circumstances, might as plausibly have resulted from negligence on the part of the passenger as of the carrier. 75 Ark. 479, 491, and authorities cited; 134 S.W. 949. Before there could be any presumption that the carrier was negligent the plaintiff must prove that he was in his proper place. It does not arise where the plaintiff shows that he was in a place of danger without the knowledge of the employees of the carrier, and in such case the cause can not be submitted to the jury. 163 F. 106; 40 Ark. 298; 69 Ark 380; 82 Ark. 522; 131 S.W. 958.

The alleged negligence in failing to stop the train is not the proximate cause of the injury. Plaintiff's own testimony, and all the evidence, goes to show that the train was slowing down, and that the train operatives were in the act of stopping it when he stepped off in the darkness. His was the intervening act of a responsible agent which was the direct and efficient cause of the injury. 68 S.E. 395; Id. 398; 87 Ark. 576; 69 Ark. 402; 66 Ark. 68; 67 S.E. 898.

2. Plaintiff was, as a matter of law, guilty of contributory negligence. While ordinarily it is an issue of fact whether or not a passenger is guilty of negligence in alighting from a moving train, it is also well established that where the facts are undisputed the question is one of law. 86 Ark. 398; 54 Ark. 25; 132 Ill.App. 400; 34 So. 110; 40 Ark. 322; 46 Ark. 437; 131 S.W. 679; 57 Ark. 461; 58 Ark. 399; 61 Ark. 555; 71 Ark. 593; 77 Ark. 556; 78 Ark. 61; 79 Ark. 337; 80 Ark. 169; 83 Ark. 22; 88 Ark. 510; 90 Ark. 210; 91 Ark. 14; 99 Ark. 248; Thompson on Neg. § 3018; 23 Pa.St. 147

J. I. Alley, for appellee.

Under the facts in this case, it was purely a question for the jury whether or not it was negligence per se to alight from the train while in motion. 86 Ark. 325; 46 Ark. 423; 37 Ark. 519; 82 Ark. 504; 82 Ark. 393; 99 Ark. 248.

FRAUENTHAL, J. KIRBY, J., dissents.

OPINION

FRAUENTHAL, J.

This was an action instituted by W. A. Worthington, the plaintiff below, to recover damages for injuries which he alleged he received while attempting to alight as a passenger from one of defendant's trains. On November 25, 1910, the plaintiff became a passenger on one of defendant's local freight trains from Mena to Cove. It appears that Cove was a station on defendant's railroad, and that defendant carried passengers on its local freight trains and stopped such trains at said station when having passengers for that place. Upon entering the caboose of the train at Mena, the plaintiff notified the conductor that he desired to be carried to Cove and paid his fare to that station. Before arriving at that station, one of the brakemen went to the engineer and notified him that they had a passenger for Cove, and to stop the train there.

Plaintiff was a resident of Cove, and was well acquainted with the location of the depot platform and the general condition of the track at that place. When the train approached Cove, its speed was slackened until it was going at the rate of probably from three to four miles per hour as it passed the depot platform. In the meanwhile, as the train approached the platform, the plaintiff left his seat and went to the rear of the caboose preparatory to leaving the car. The train did not stop at the depot platform, but was going slowly past it, and the plaintiff, fearing that it would not stop but would carry him past his destination, attempted to alight from the train, and in doing so was thrown to the ground with such force that he was severely and painfully injured.

The testimony tended to prove that, as the train was passing the depot platform, it was going at such a slow rate of speed that one might have left it with safety. All of the employees of the defendant upon the train testified to this. One of the brakemen was asked: "Q. The train was going sufficiently slow for a man to get off without injury? A. Yes, sir; I have got off lots of times that slow."

The testimony tended further to prove that just about or after the train had passed the platform, the conductor looked for the plaintiff, and, not seeing him, and observing that the train had passed the depot platform so slowly, he thought that he had alighted from the caboose in safety, and thereupon he gave a signal to the engineer not to stop but to go on, and the train increased its speed, and it did not stop at all. The evidence shows that it was dark when the plaintiff attempted to alight from the train; but it also shows that the plaintiff was well acquainted with the platform and surrounding conditions at that place, that he was active in his movements, and was accustomed to alight from trains.

Upon the trial of the case, a verdict was returned in favor of plaintiff, and the railway company has appealed.

It is contended by counsel for defendant that, according to the testimony most favorable to the cause of plaintiff, the court should have directed a verdict against his right to recover. It is urged that the defendant under this testimony was not liable for plaintiff's injury, because the failure to stop the train at the station was not the proximate cause thereof, which it is claimed was solely the result of his leaving the train while it was in motion. It is also urged that according to the testimony the plaintiff was guilty of contributory negligence in going to the steps of the caboose and attempting to alight therefrom while the train was in motion, or that he thereby voluntarily assumed the risk of any injury resulting therefrom.

It is well settled, we think, that it is the duty of a railroad company as a carrier of passengers to stop its trains at a station which by its regulations it has designated as a place for stopping, and to there remain for a sufficient time to permit its passengers, in the exercise of ordinary diligence and care, to safely leave its trains. The passenger must not only be carried properly and safely, but he must be carried to the end of his journey for which he has paid his fare, and he must be put down at the usual stopping place at the end of such journey. Unless the proof shows that, according to the regulations of the company, or a custom in handling trains, a distinction is made between trains exclusively employed in carrying passengers, and those engaged in carrying freight and passengers, it is the duty of a railroad company to transport the passenger on either kind of train to the usual stopping place and there stop its trains and permit the passenger to alight therefrom. 2 Hutchinson on Carriers (3 ed.), § 1117.

In the case at bar, there is no evidence that any distinction was made in this regard by any rule, regulation or custom of defendant between the two kinds of trains. The plaintiff had the right to act upon the belief and assumption that the defendant would stop its train at the usual stopping place at Cove, so that he could there alight. When the train slackened its speed and approached the platform slowly, the plaintiff was therefore warranted in the belief that it was about to and would stop there, and was justified in acting upon that belief. It then became a question for the jury to say whether or not the plaintiff acted with ordinary prudence when he left the caboose and proceeded to the steps thereof preparatory to alighting.

It is contended that the plaintiff was guilty of an act of negligence contributing to his injury by going upon the steps of the caboose while the train was still in motion, and before it had actually stopped; and to sustain this contention we are cited to the cases of St. Louis, I. M. & S. Ry. Co. v. Rush, 86 Ark. 325, 111 S.W 263, and Chicago, R. I. & P. Ry. Co. v. Claunts, 99 Ark. 248, 138 S.W. 332. But we do not think that the principle advanced in those cases is applicable to the facts of this case. In those cases the train had not stopped at the station, and the passenger was not notified or informed that the train would stop at the station. On the contrary, the passenger knew that the train would not stop, and took his position upon the steps of the coach without direction from any employee of the carrier, and without any right to believe or assume that the train would stop. In those cases the passenger, while at a place where he had no right to be, and without the knowledge of the carrier's employees of his position, was thrown from the train by the sudden increase in the movement thereof. It was there held that the train operators had a right to assume that the passenger was in his place in the coach, and could move the train as they saw proper as long as...