Missouri Pac. Transp. Co. v. Shepherd, 4-6549.

• Decision Date: 22 December 1941
• Docket Number: No. 4-6549.,4-6549.
• Citation: 157 S.W.2d 501
• Parties: MISSOURI PAC. TRANSP. CO. v. SHEPHERD.
• Court: Arkansas Supreme Court

157 S.W.2d 501

MISSOURI PAC. TRANSP. CO. v. SHEPHERD.

No. 4-6549.

Supreme Court of Arkansas.

December 22, 1941.

Rehearing Denied January 26, 1942.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by David Edgar Shepherd against the Missouri Pacific Transportation Company for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed if plaintiff enters remittitur, and otherwise reversed and remanded.

Pryor & Pryor, of Fort Smith, for appellant.

Partain & Agee, of Van Buren, and Hardin & Barton, of Fort Smith, for appellee.

MEHAFFY, Justice.

The appellee, David Edgar Shepherd, on January 12, 1941, at about four or four-thirty, a. m., took passage on the bus of appellant, Missouri Pacific Transportation Company, at Coal Hill, Arkansas, and paid his fare to Ft. Smith, Arkansas.

It was alleged in the complaint that it was dark and there were no lights on the bus; that after the bus had reached Crawford county a heavy suitcase and bundle of newspapers, which were in a rack on the opposite side of the bus from appellee, fell out of the rack and onto appellee causing him to lose consciousness and injuring him severely; that the agent, servant and employee of the appellant carelessly and negligently permitted to remain in the overhead compartment a certain large and heavy suitcase and a large and heavy bundle of papers; that he was injured seriously, made sick, made to lose time from his work, and that it was all caused by the negligence of appellant's servants in permitting said suitcase and papers to fall on and injure appellee. He prayed damages against the appellant in the sum of $2,975.

Appellant answered denying each and every allegation in the complaint. There was a trial and verdict and judgment in favor of appellee in the sum of $1,250. Motion for new trial was filed and overruled, and the case is here on appeal.

It is first contended by the appellant that there was no actionable negligence proved and that appellee was not entitled to recover. Appellant seriously objects to Instruction No. 2 given at the request of the appellee, which reads as follows: "In this case if you find from a preponderance of the testimony that the plaintiff, David E. Shepherd, became a passenger upon a bus of the defendant, Missouri Pacific Transportation Company, and paid his fare as a passenger thereon, and you further find from a preponderance of the evidence that while the plaintiff was such passenger upon said bus a suit case and bundle of newspapers was caused to fall out of a rack or compartment above where the plaintiff was riding and to strike and injure him while said bus was traveling upon the highway and you further find from a preponderance of the evidence that said suitcase and bundle of newspapers had been carelessly and negligently placed in said rack in a dangerous and unsafe manner, and if you further find from a preponderance of the evidence that the driver and operator of said bus knew of the dangerous and unsafe manner in which said suitcase and bundle of newspapers were placed, if they were so placed, or by the exercise of ordinary care on his part should have so known, or if you find from a preponderance of the evidence that at the time of the injuries, if any, to the plaintiff, the bus upon which he was riding was being operated by the driver thereof at a dangerous and unlawful rate of speed around a curve upon a highway, and you further find from a preponderance of the evidence that such acts, or either of them, if they existed, was negligence, and caused said objects to be thrown and to strike plaintiff, if such acts or either of them did so cause same to be done, and you further find from a preponderance of the evidence that such actions or either of them, if same existed, upon the part of the defendant or its said employees was the proximate cause of plaintiff's injuries, if any, then your verdict should be for the plaintiff against the Missouri Pacific Transportation Company."

It is argued by appellant that this instruction is wrong because there is no suggestion in the record that the driver of the bus had anything to do with placing these articles in this receptacle. Appellant cites and relies on the case of Strickland v. Missouri Pacific Transp. Co., 195 Ark. 950, 115 S.W.2d 830, 833. The Strickland case was not a personal injury case, but was for the loss of baggage, and the trial court directed a verdict in favor of the Missouri Pacific Transportation Company. This court reversed the case and remanded it for new trial. It was said in that case: "Under the law in this state, the carrier is bound to accept and carry the baggage of the passenger. It may check the baggage or it may permit the passenger to keep in his possession the hand baggage; but if it takes exclusive control and deprives the passenger of the custody of the baggage, it becomes liable for its loss. It is not required to check the hand baggage, but it is required to check it or permit the passenger to have custody and control of it."

There was no question in the Strickland case like the one involved here. The driver of the bus, in this case, testified that he knew that there was more than...