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

• Decision Date: 18 December 1886
• Citation: 2 S.W. 505,48 Ark. 106
• Parties: LITTLE ROCK & FORT SMITH RY. CO. v. CAVENESSE
• Court: Arkansas Supreme Court

2 S.W. 505

48 Ark. 106

LITTLE ROCK & FORT SMITH RY. CO. v. CAVENESSE

Supreme Court of Arkansas

December 18, 1886

APPEAL from Pulaski Circuit Court, Hon. F. T. VAUGHAN, Judge.

Judgment reversed.

J. M Moore, for appellant.

First--On the general proposition as to the burden of proving contributory negligence there is a conflict in the authorities, and this court has recently held that it would follow the cases which hold that the burden is on the defendant. But in a case like this, where the negligence of the plaintiff, or his intestate, is necessarily developed in prosecuting his case, we do not understand that the rule adopted by this court has ever been applied in any case.

In R. R. Co. v. Whitacre, 35 Oh., St. 627, the court held that the burden of proving contributory negligence was on the defendant, but if the plaintiff's own testimony in support of his cause of action raises the presumption of contributory negligence, the burden rests upon him to remove that presumption.

See also, 72 Pa. 141; 33 N. J. Law, 438; 61 Ga. 429; 12 R. I 447; 37 Vt. 501; 20 N.Y. 69; 41 Wisc., 105; 43 Wisc., 513; 21 Minn. 297; 2 Wharton Negl., secs. 425-6; Beach on Cont. Neg. p. 423; Sh. and Red., on Neg., secs. 43-45.

This court, in the late case of T. & St. L. Ry. Co. v. Orr, as Ad., 46 Ark. 193, heretofore referred to, makes the same qualification of the rule as is made in the above cited cases. The court say: "If the plaintiff in any case of personal injury can show negligence upon the part of the defendant, without at the same time disclosing the inherent weakness of his own case by reason of contributory negligence, then such contributory negligence is matter of defense, in confession and avoidance, affirmative in its character, and the burden is upon the defendant to establish the defense by a preponderance of testimony, as in all other affirmative defenses of like nature." See, also, 76 Pa. 157; 34 Ark. 613.

And so we contend in this case that, while the burden of proving contributory negligence was, in the first place, on the defendant, it was, upon the disclosure by plaintiff's evidence of the negligence of her intestate, shifted from the defendant to the plaintiff. The legal presumption in favor of dilignce on his part having been overcome by plaintiff's own evidence, it then devolved upon her to explain and excuse her intestate's conduct.

Second--The fifth and sixth instructions asked by the defendant should have been given without the modifications made by the court. If the facts hypothetically stated in these instructions were supported by the evidence, and there were no other facts in evidence to excuse or justify the conduct of the deceased, his negligence was a legal inference. The law itself settled that it was not "a position that a prudent man should have stopped in," and the modification made by the court in these instructions were calculated to mislead the jury as to the legal effect upon the evidence.

Conceding that he sustained the relation of passenger and was entitled to all the rights and protection that the relation implies, he was under the corresponding duty of a passenger to avoid unnecessarily exposing himself to danger. The duty of each was to observe a degree of care proportioned to the nature and extent of the danger. A passenger at a depot cannot assume that the railroad company is an insurer of his life, and close his eyes to the peril necessarily incident to the exposure of his person on the track or in other dangerous situations. He is under the same duty to avoid positions of known or obvious danger while at the station awaiting the train that he is after he gets upon the cars and begins his journey. 46 Ark. 528; 36 Ark. 46; 95 U.S. 702; 3 Pa. St., 326-7.

The relative rights and duties of the railway and the passenger are well summed up in the following extract from a careful and accurate text writer:

"Injuries frequently happen to passengers by being run over by other trains passing through stations, while taking or leaving their own train. In cases of this kind it would seem that if the running arrangement of the road are such that it is necessary to pass over a railroad track in order to take or leave a train, the passenger may rightfully expect protection against the running of trains at such a time, and may, therefore, properly relax that vigilence for his safety which is ordinarily demanded of one coming upon a railroad track. But, if the presence of the passenger on the track is not essential to his getting on or off the train, and he has neglected safe and convenient means provided by the company for this purpose, he is there at his peril." Thompson on Carriers of Passengers, p. 268, par. 4; also, p. 233, par. 19.

In an action by a passenger who was struck by an engine while in the act of crossing the track, in going from the office to the train upon which he was about to take passage, the court say: "The plaintiff could not recover unless he was himself using due care at the time he received the injury, even if the carelessness of the defendant occasioned it. And the burden of proof was on him to show that he used such care. This much is clearly settled." Warren v. Ry. Co., 8 Allen, 230; Mayo v. Ry. Co., 104 Mass. 140; Wheelock v. Ry. Co., 105 ib., 206; 97 Mass. 278; 135 ib., 225; 38 N.Y. 449; 61 Iowa 555.

Third--The second instruction of plaintiff should not have been given. The question ought not to have been submitted to the jury, for there was no relevant testimony before them of any alleged defect in the platform. The evidence of Matthews was inadmissible.

Fourth--The verdict was not sustained by the evidence, and the jury were influenced by the statements made by the counsel for plaintiff. See 38 Mich. 13, as to improper statements made by counsel.

Sol F. Clark & Son and J. C. Barrow, for appellee.

The obligation upon a railroad company to keep a look-put upon the track, and which this court has often held rests upon the employes of a running train, is a thousand-fold stronger when running through a depot. 36 Ark. 371; 39 ib., 491; 36 ib., 31.

Says Justice Cole, in Johns, adm'r, v. Chicago & N.W. Ry., 5 N.W. 887:

"It seems needless to remark that the operation of a railway over and along public streets, in a village or city, is necessarily attended with great peril to human life and property, consequently the utmost care should be exercised by the servants of the company to avoid injury." Butler v. Mil. & St. Paul R. Co., 28 Wis. 487.

It is not denied but admitted that Cavenesse was a passenger when he was killed, and the company was obligated to him by the duties due to a passenger. (See Beach on Contributory Negligence, pp. 50 and 62.) These duties were, that when such passenger was at the depot, attending to getting his ticket and checking his baggage, to run slow through the station--to stop and be flagged before crossing the Memphis railroad track, especially when a Memphis train was in sight ready to cross--to blow the whistle and ring the bell, and especially to keep a lookout upon the track in the depot. 2d Wood's Railroad Law, pages 1038, 1163, sec. 310; Gordon v. Grand St., etc., R. R. Co., 40 Barb. (N. Y.), 546; 2 Waite's Actions, etc., page 65; Warren v. Fitchburg R. R. Co., 8 Allen, 227.

"While at the platform it was the company's duty to protect him." See Wharton, 653, 821.

To hold that the being on the track by a passenger, and not to see a train coming is negligence in law, rejecting all circumstances to excuse such a condition, is plainly to require of the passenger not ordinary but extraordinary prudence, such as is exercised only by the few and not the many. This is not the law and never has been. It only requires ordinary care on the part of a passenger under any circumstances, while it holds the carrier to extraordinary care under all circumstances. 2 Waite's Actions and Defenses, 64; 6 Waite's Actions and Defenses, 595; 2 Woods' Railway, sec. 301.

The "golden rule" for determining negligence, under any and every circumstance, is to inquire "whether men of ordinary (not extraordinary) prudence would have done or omitted the same thing." Did plaintiff's decedent exercise ordinary care under the circumstances--not independent of the circumstances? Beach on Cont. Neg., 7.

In the case of Morrison v. Eric R. R. Co., 56 N.Y. 32, Judge Folger said.

"That the rule established, and as I think the true one, is, that all circumstances of each case must be considered in determining whether, in that case, there was contributory negligence or want of ordinary care, and that it is not sound to select one prominent and important fact, which may occur in many cases, and to say that that fact being present, there must, as matter of law, have been contributory negligence. The circumstances vary infinitely, and always affect, and more or less control each other. Each must be duly weighed and relatively considered before the weight to be given to it is known."

And see Van Stimburg's case, 17 Mich. 99; also, 17 Wall. 657; 40 Cal. 447; 61 Md. 53.

So in the case of Ireland v. Plank Road Co., 13 N.Y. 533:

"It by no means necessarily follows, because there is no conflict in the testimony, that the court is to decide the issue between the parties as a question of law."

And see Jamison v. San Jose & Santa Clara R. R. Co., 55 Cal. 593; Penn. R. R. Co. v. Burnett, 59 Pa. St., 263; T. & R. Ry. Co. v. Murphy, 46 Texas, 366; Quimby v. Vermont Cent. R. R. Co., 23 Vt. 387; see, also, 23 Cent. Law, J., 347; 22 Wis. 675, where it is said:

"That to require of the mass of mankind that extreme degree of care which only persons of extraordinary prudence possess, would be to require an impossibility. It would be to deliver them up to be destroyed by the...