Lawton v. Little Rock & Ft. S. Ry. Co.

• Decision Date: 06 February 1892
• Citation: 18 S.W. 543
• Parties: LAWTON v. LITTLE ROCK & FT. S. RY. CO.
• Court: Arkansas Supreme Court

18 S.W. 543

LAWTON v. LITTLE ROCK & FT. S. RY. CO.

Supreme Court of Arkansas.

February 6, 1892.

Appeal from circuit court, Pope county; JORDAN E. CRAVENS, Judge.

This was an action by L. P. Lawton against the Little Rock & Ft. Smith Railway Company to recover for personal injuries. There was judgment for plaintiff and defendant appeals. Reversed.

Dodge & Johnson, for appellant. A. S. McKennon, for appellee.

HEMINGWAY, J.

This was an action to recover damages for personal injuries sustained by the plaintiff while leaving the defendant's car, into which he had gone to escort a lady and child, and assist them, with their hand-baggage, to a seat. The matters charged in the complaint to cast liability upon the defendant are as follows: First, that the defendant did not stop its train the usual length of time, or a reasonable time, for persons to get on and off, and by reason thereof the plaintiff fell from the step, and was injured, while attempting to leave the car; and, second, that while he was engaged in leaving the car the train started with a sudden jerk, and defendant's porter gave him "a violent thrust" with his elbow, by reason whereof he was violently thrown to the platform of the depot, and badly hurt. The questions arising upon the latter ground had better be disposed of at the outset, for as to them we find little difficulty in reaching a conclusion. According to the evidence, including that of the plaintiff himself, the sudden jerk, if there was any, occurred while he was in the car, and caused him no injury. It certainly had no connection with the hurt he received in being subsequently thrown from the steps of the car. The porter's thrust was given as he stepped upon the car to resume his trip, and it is not alleged in the complaint, nor shown by the evidence, that it was due to his careless or willful neglect. It appears that he acted as porters usually do in getting upon a train that is starting upon its course; and as it was his duty to get aboard, and there is no evidence that he did it in an improper manner, it discloses no negligence. The instructions which based a right of recovery upon this ground were improper, and should not have been given.

A more difficult question arises upon the other ground of alleged negligence, — one not settled by any decision of this court. The defendant insists that inasmuch as the plaintiff did not enter the car to take passage upon it, but only as escort to a passenger, the defendant owed him no duty except not to injure him willfully or wantonly; while the plaintiff contends that as he went upon the car with the knowledge of the trainmen, and for the purpose of rendering necessary assistance to a female passenger and little child, the defendant owed him the same duties as a passenger. The learned counsel who has presented the cause for the plaintiff cites us to no authority in support of his contention, and it impresses us as unsound. The cases relied upon by the defendant do not, as we think, bear out his position, but show that it is untenable. Lucas v. Railroad Co., 6 Gray, 64; Doss v. Railroad Co., 59 Mo. 34; Coleman v. Railroad, etc., Co., 84 Ga. 1, 10 S. E. Rep. 498. We have concluded that neither view is correct, but that reason commends as proper a rule between the two. In the case of Railroad Co. v. Crunk, 21 N. E. Rep. 31, the supreme court of Indiana held that a railroad company owed the same duty to those assisting a passenger upon a train as to the passenger himself; but it cites no precedent for the ruling, and it is opposed to all cases adjudged upon the subject to which our attention has been called. The law exacts of railroads for the protection of passengers the highest degree of care, and imposes a liability for all injuries which sound judgment, skill, and the most vigilant oversight could have prevented; but this responsibility grows out of the relation or contract of carrier and passenger, on account of the great perils of the undertaking. As this is the cause and origin of the rule, it would seem that the rule should be restricted in its application to persons who come within that relation, and such is the effect of the authorities. Lucas v. Railroad Co., 6 Gray, 64; Doss v. Railroad Co., 59 Mo. 34; Coleman v. Railroad, etc., Co., 84 Ga. 1, 10 S. E. Rep. 498; Griswold v. Railroad Co., (Wis.) 26 N. W. Rep. 101; Thomp. Car. p. 49, § 7.

But a denial that the extreme responsibility contended for exists is not an affirmance of the rule that responsibility is restricted to wrongs that are willful or wanton. Such conclusion would rest upon the premise that one attending a passenger enters the cars from curiosity, or upon his own business, under a mere license from the company, and not upon business connected with the company, upon an implied invitation. If this premise be false, and the converse correct, then, according to the decisions of this and other courts, the carrier would be bound to the exercise of ordinary care, (Railroad Co. v. Fairbairn, 48 Ark. 491, 4 S. W. Rep. 50; Holmes v. Railroad Co., L. R. 4 Exch. 254,) and that it is so bound in cases like this is held in the cases first cited, as well as in others upon the subject, (Gillis v. Railroad Co., 59 Pa. St. 129; Griswold v. Railroad Co., [Wis.] 26 N. W. Rep.101.) In our opinion, the rule is correct upon principle. For it is a matter of common knowledge that in the usual conduct of the passenger business it often becomes necessary for those not passengers to go upon cars to assist incoming as well as outgoing passengers, and that a practice has grown up in response to this necessity. While it perhaps arose...