Kansas City Southern Railway Co. v. Davis

Decision Date17 June 1907
Citation103 S.W. 603,83 Ark. 217
PartiesKANSAS CITY SOUTHERN RAILWAY COMPANY v. DAVIS
CourtArkansas Supreme Court

Appeal from Little River Circuit Court; James S. Steel, Judge affirmed.

Action by John Davis against Kansas City Southern Railway Company. This is the second appearance of this case here. Upon the first trial of it in the circuit court, a verdict was directed, and plaintiff appealed, and this court held that the plaintiff's testimony, if true, made out a liability against the defendant, and that the case should be submitted to a jury under proper instructions. Davis v. Kansas City So. Ry. Co., 75 Ark. 165.

The second trial resulted in a verdict in favor of plaintiff for the sum of $ 800, and the railroad has appealed from a judgment entered thereon. The testimony may be found stated in in the former opinion. The evidence was practically the same upon this trial. The defendant questions the correctness of the court's instructions. The following instructions given by the court at the request of the plaintiff were objected to by the defendant.

"I. The court instructs the jury that if they find, from a preponderance of the evidence, that the plaintiff was injured, and that such injuries were caused by a running train of the defendant, then you are instructed that this is prima facie proof of negligence on the part of said company.

"III. The court instructs the jury that railway carriers of passengers must be extremely careful not to mislead their passengers into belief that the halting of the train at a station is meant as an invitation to them to alight when it is not so intended; and if the conduct of the servants engaged in the management of the train is such as may reasonably produce that impression, and the passenger so understands it, and in the attempt to leave the coach at a place where no facilities are provided for his doing so, and whilst in the exercise of due care and diligence in doing so he is injured, the company will be liable.

"V. The court instructs the jury that, if the plaintiff was a passenger on said train for Ashdown, then it became and was the duty of the defendant to cause its said train to stop at Ashdown and to remain at a standstill a reasonable length of time, sufficient to enable the plaintiff, in the exercise of ordinary care and diligence, to alight therefrom; and if they stopped such train short of said station, under circumstances which reasonably induced the plaintiff to believe that this was his station and the proper place to alight, and if plaintiff, without any negligence on his part, attempted to alight, using ordinary care and diligence in such attempt and that, before he had been given a reasonable opportunity to alight, the servants of defendant, without any warning being given, caused such train to start, and thereby plaintiff was thrown down and injured as alleged, then plaintiff is entitled to recover.

"VI. A reasonable length of time in which passengers should alight is such time as a person of ordinary care and prudence under the circumstances should be allowed to take. It is the duty of the carrier, in determining what is a reasonable length of time, to take into consideration any special condition peculiar to any passenger, if known, and to the surroundings and to give a reasonable time under the existing circumstances, as they are known by its servants, for the passenger to get off or on its train.

"VII. If you believe from the evidence that the plaintiff was injured by reason of the negligence of the defendant company, a recovery can not be defeated on the ground of contributory negligence unless it appears from the evidence that the plaintiff himself failed in the exercise of ordinary prudence, and that such failure so contributed to the injury that it would not have occurred if he had been without fault. Contributory negligence will not be presumed, but must be proved by a preponderance of the evidence.

"VIII. The court instructs the jury that if they should find from a preponderance of the evidence that the plaintiff was intoxicated at the time of the injury complained of, you are instructed that such intoxication, if any, does not, of itself, constitute a defense to plaintiff's right of recovery; and such intoxication, is not, in itself, evidence of contributory negligence, and is merely a circumstance to be considered by you in determining whether such intoxication contributed to the injury complained of; if it did not contribute to such injury, then such intoxication would be no defense to plaintiff's cause of action, and you should discard and disregard all testimony in regard to such intoxication in case you find that it did not contribute to plaintiff's injury."

Judgment affirmed.

Read & McDonough, for appellant.

1. The first instruction is based upon the lookout statute, Kirby's Dig. § 6607, and is not applicable to state of facts like the facts in this case. If plaintiff's statements be true, his injury was due, not to the sudden start of the train, but to the failure to warn. It was therefore error to put the burden upon the defendant. 44 Ark. 330; 23 A. 989; 52 Ark. 517; 51 Ark. 460; 58 Ark. 454; 40 Ark. 298. See also 70 Ark. 481.

2. The third instruction is abstract and misleading, and erroneously assumes that the defendant misled the plaintiff.

3. The fifth and sixth instructions are inapplicable to the facts. There was no issue that the defendant failed to give sufficient time to alight at a station, and there was no duty resting on the defendant to hold its train long enough at a temporary stop to allow the plaintiff to alight. Instructions which are not applicable to the facts of a case are erroneous. 41 Ark. 282; 37 Ark. 580; 9 Ark. 212; 13 Ark. 317; 16 Ark. 628; 26 Ark. 513; 57 Ark. 615; 42 Ark. 57; 54 Ark. 336; 58 Ark. 454.

Scott and Head, for appellee.

1. Appellant's exceptions to the instructions given, being in gross, are insufficient, and ought not to be considered. 75 Ark. 181; 76 Ark. 482; Id. 41; 38 Ark. 539.

2. The first instruction is not based upon Kirby's Dig. § 6607 alone. See also Id. § 6773, upon which appellee especially relies. As supporting this instruction, see 66 N.E. 478; 73 Ark. 548. For construction of above sections, 99 S.W. 81. Under other instructions given the jury, before finding, in plaintiff's favor, must have found that he was not guilty of negligence, hence this instruction could not have been prejudicial. In the absence of contributory negligence, the presumption of the carrier's negligence arises. 142 F. 955; 6 Cyc. 629; 7 Am. Rep. 699; 65 N.E. 557; 20 Barb. 282.

3. The third instruction is the law, and has been approved by this court. 75 Ark. 211. If it was objectionable, it was appellant's duty to make known its objections specifically in the court below. 73 Ark. 539; 65 Ark. 255; 73 Ark. 594; 75 Ark. 325.

4. The fifth and sixth were proper instructions. 3 Thomp. Neg. § 2870; 24 N.E. 631; 33 N.E. 204; 6 Cyc. 613-14; 26 So. 466.

HILL, C. J. BATTLE, J., dissents.

OPINION

HILL, C. J.

The principal attack is made on the first instruction, which is copied in the statement of facts. Appellant argues that this instruction is only proper when the negligence of the company is a failure to obey the lookout statute. Section 6607 of [83 Ark. 221] Kirby's Digest. But counsel are in error in this, for it has been held that, under section 6773 of Kirby's Digest, placing responsibility upon railroads where injury is done to persons or property by the running of trains, a prima facie case of negligence is made out against the company operating the train by the proof of the injury. Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548, 85 S.W. 94; St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 275, 99 S.W. 81.

It is argued that the Barringer case was where injury was caused by the sudden jerk of the train, and therefore it may have been an injury caused by the running of the train, whereas the injury here was...

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