Little Rock Traction & Electric Company v. Nelson

• Decision Date: 03 June 1899
• Citation: 52 S.W. 7,66 Ark. 494
• Parties: LITTLE ROCK TRACTION & ELECTRIC COMPANY v. NELSON
• Court: Arkansas Supreme Court

52 S.W. 7

66 Ark. 494

LITTLE ROCK TRACTION & ELECTRIC COMPANY v. NELSON

Supreme Court of Arkansas

June 3, 1899

Appeal from Prairie Circuit Court, Southern District, JAMES S THOMAS, Judge.

Reversed and remanded for new trial.

Rose Hemingway & Rose and C. T. Coleman, for appellant.

It was error to permit plaintiff to testify as to his opinion with regard to the danger or difficulty of boarding the car. 1 Whart. Ev. 509; 29 Ark. 448; 24 id. 251; 56 id. 612; 57 id 387. It was error to admit evidence of what the motorman said after the accident--it was not of the res gestae. 95 N.Y. 275; 19 Am. & Eng. Ry. Cas. 400; 58 Ark. 47; 1 Greenlf. Ev. § 108; 1 Wh. Ev. § 262. No proper foundation was laid for the impeachment of appellant's witness, Kelly. Sand. & H. Dig. § 2960; 37 Ark. 324. The court should have directed a verdict for defendant: The evidence shows that appellant was not negligent, and that appellee was. 58 Ark. 323; 114 N.Y. 108; S. C. 21 N.E. 102; 45 Ark. 246; 57 Ark. 461. One who boards a moving car does so at his own risk. 23 A. 566. Appellee's instructions are erroneous, because based on the theory that he had used all the care to protect himself reasonably to be expected of one his age. 14 S.W. 762; 21 S.W. 163. There is no duty resting on one person to anticipate or take precaution against the wrongful acts of another. 49 Ark. 262; 47 id. 502; 50 id. 483; 107 Mass. 108. One who rides without paying fare is not protected as a passenger. 59 Ark. 404; 47 N.W. 809; 13 S.W. 19; 81 Ill. 245; 85 id. 80; 22 Barb. 91; 8 Kan. 505; 157 Mass. 377; 110 Mo. 81; 23 S.C. 531; 67 F. 523; 65 N.W. 450; 66 id. 401; 91 N.Y. 420. It was not the motorman's duty to devote his entire attention to the protection of appellee. 17 S.E. 651. As the motorman had no knowledge of the danger of appellee on the car, he was not negligent. 23 A. 345; 74 Pa.St. 421; 6 Am. & Eng. Ry. Cas. 526; ib. 525; ib. 690; 26 N.E. 967.

T. J. Oliphint and G. W. Murphy, for appellee.

Appellee was not a trespasser, nor was he guilty of contributory negligence. He was a passenger, and entitled to protection as such. 55 U.S. 468; 29 Am. Rep. 619; 2 S.W. 315; 18 S.W. 1090; 3 L. R. A. 156; 11 S.W. 751; 10 S.E. 730; 8 So. 708. There was no error in the admission of appellee's and witness Martin's opinions as to the degree of danger. 27 A. 309; 47 N.W. 459. The statement of the motorman was admissible as part of the res gestae. 48 Ark. 333; 65 Ark. 261.

OPINION

BATTLE, J.

The Little Rock Traction & Electric Company seeks to set aside a judgment which was recovered against it by Cecil Nelson in the circuit court of the southern district of Prairie county for the sum of $ 2,500, which was assessed against it, by the verdict of a jury, as compensation to Nelson for personal injuries alleged to have been sustained by him in consequence of the failure of the company to exercise due care in the operation of its street railway.

The judgment was recovered in an action instituted by Cecil Nelson, by his father and next friend, J. W. Nelson, against the Little Rock Traction & Electric Company. The plaintiff, after alleging that he is only ten years old, and that the defendant is a corporation operating a street railway in the city of Little Rock, stated the circumstances and causes of the injuries as follows: On the 11th of August, 1896, at the instance of the defendant's motorman, he took passage on the car passing from Rector avenue to the end of the car line and return. At the end of the line the car stopped for a few minutes, when he and other passengers got out, and remained until the car was ready to return. When the motorman was ready, and in the act of starting, he again invited the plaintiff to get on board, which he attempted to do by its rear entrance, but was prevented from doing so by the motorman. Plaintiff thereupon, seeing that the motorman intended that he should get on at the front entrance, ran to the front end of the car, caught hold of the upright "handle-bars" and of the first step, and attempted to enter the car while it was moving slowly, when this method of entrance seemed safe. At this time the motorman, knowing that the plaintiff was trying to get on, negligently and wrongfully turned on the full electric current, thereby causing the car to make a sudden lurch forward, and increased its speed, and causing him to lose his footing on the steps and his hold of one of the "handle-bars." Being unable, on account of the accelerated speed, to regain his footing, and discovering that he could not release his hold of the other "handle-bar" without incurring serious injury, he held on to it, calling as loudly as he could to the motorman to stop the car, which he failed to do. At last, after plaintiff had been dragged a great distance, his strength failed, his hold of the "handle-bar" yielded, he fell, and the whole of the car ran over his foot and ankle, crushing them so badly that his leg had to be amputated.

The defendant answered as follows: "It is not true that the plaintiff was, at the time of his injury, riding on the car by the invitation of its motorman; but he was a willful trespasser on the car, though he had been often warned against trespassing thereon; and his injury was due to his own willful wrong and contributory negligence, and not to any negligence on the part of the defendant. Defendant specifically denies all acts of negligence charged in the complaint."

The evidence in the case is too voluminous to set out in an opinion, and for that reason we shall state only so much of it as may be necessary to present the questions that will be decided.

It was shown by the evidence that the plaintiff received the injury for which he asked damages while he was attempting to board a car of the defendant. He (the plaintiff) testified that he got on the car at Rector avenue on the East Ninth street line; that Gillis, the motorman, invited him to get on; that two other boys, Grover Hammond and George McKee, went with him; that they rode on the car to the end of the Ninth street car line, where the car was stopped for a few minutes, that, when the motorman was about to move the car, he invited him and the other boys to get on; that the car was running slowly when they boarded it, George and Grover getting on the south side and he on the north; that the motorman whipped them off, and he ran to the front end of the car, and placed one foot upon the car, when it moved suddenly and rapidly forward, and he slipped, and fell; that he held on as long as he could, when he let loose his hold, and the car ran over his left foot. After he made this statement, his counsel asked this question: "What difficulty would you have had in getting on if it had remained going as it was when you started on it?" And he answered: "I guess I would have got on if it had not started fast." To the question and answer the defendant objected, but the objection was overruled, and exceptions were saved. Was the testimony admissible?

As a general rule, witnesses who are not required to testify as experts must state facts, and not conclusions. The opinions of such witnesses are admissible on conditions which are correctly stated in Commonwealth v. Sturtivant, 117 Mass. 122, 137, as follows: "First, that the subject-matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time; and, second, that the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending and understanding." According to this rule, opinion evidence is not admissible when the fact is susceptible of being adequately exhibited to the jury in the ordinary way. Madden v. Missouri Pacific Railway Co., 50 Mo.App. 666, 673; President, etc., of the Baltimore and Yorktown Turnpike Road v. Leonhardt, 66 Md. 70, 77, 5 A. 346; 2 Fetter, Carriers of Passengers, § 465.

The testimony in question involved a submission to the witness of the decision of one of the questions which was within the exclusive province of the jury to determine, and that was, did the plaintiff exercise due care in boarding the defendant's car? This was a question which a jury of ordinary intelligence and experience in the affairs of life could decide upon a full presentation of all the facts and circumstances of the case, without the aid of the opinion of the witness. The testimony objected to was, therefore, incompetent. Madden v. Missouri Pacific Ry. Co., 50 Mo.App. 666, 673; President, etc., of the B. & Y. Turnpike Road v. Leonhardt, 66 Md. 70, 77, 5 A. 346.

Branch Martin was allowed to testify, over the objections of the defendant, that he did not think it was dangerous to get on the East Ninth street cars by the front platform, when they were running slowly. This testimony was incompetent, for the same reason the opinion of plaintiff, as above stated, was not admissible.

Evidence was adduced at the trial to prove that boys had ridden on defendant's cars at different times without permission, and, at other times, by invitation, and without paying fare. This evidence was incompetent. It did not tend to prove that the plaintiff was or was not entitled to ride on the car he attempted to board at the time he was injured.

J. H Williams testified that when Cecil Nelson fell, and was injured, he ran to his assistance, and called to Gillis, the motorman, who thereupon stopped the car, and moved it back where Cecil was, and put him on it. The witness testified further, over the objections of the defendant, as follows: "When he (Gillis) came back, and got the boy (Cecil), and put him on the car, he took my (witness's) name and two more of the boys' names, Will Tatum and Sam Armstrong. He (Gillis) says: 'It was my...