Missouri Pac. Transp. Co. v. Jones
| Decision Date | 21 November 1938 |
| Docket Number | No. 4-5261.,4-5261. |
| Citation | 122 S.W.2d 613 |
| Parties | MISSOURI PAC. TRANSP. CO. v. JONES. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Clark County; Dexter Bush, Judge.
Action by Thomas Jones against the Missouri Pacific Transportation Company for injuries sustained when plaintiff in boarding defendant's bus slipped on a banana peeling on bottom step of bus. A motion for a new trial was overruled, judgment was entered for plaintiff, and defendant appeals.
Judgment affirmed.
House, Moses & Holmes and Eugene R. Warren, all of Little Rock, for appellant.
J. H. Lookadoo, of Arkadelphia, for appellee.
This action was instituted by appellee against the appellant in the Clark Circuit Court for damages for personal injuries alleged to have been received because of the negligence of appellant.
The appellant is a foreign corporation operating buses in the State of Arkansas. It operated a bus from Little Rock to Texarkana, and on November 1, 1937, appellee flagged appellant's bus just north of Friendship in Hot Springs County, Arkansas. It is alleged that when appellee stepped up to get on the bus his right foot was on the bottom step, he reached up and took hold of the hand rail to pull himself up and his right foot slipped because the appellant, its agents and employees, had negligently and carelessly left a banana peeling on the bottom step which caused appellee's right foot to slip out from under him. The complaint then described the injuries received by appellee, and prays damages in the sum of $3,000.
The appellant answered denying specifically each allegation in the complaint; denying that appellee was injured, and pleaded contributory negligence.
There was a jury trial and verdict and judgment for appellee in the sum of $2,500. The case is here on appeal.
Motion for new trial was filed and overruled. There are a number of assignments of error in the motion for new trial, but the appellant urges only one; that the court erred in refusing to grant its request for a directed verdict on the ground that the evidence is not sufficient to sustain the verdict. It is also stated by appellant that the appellee was guilty of contributory negligence.
Appellee's evidence is to the effect that he lived at Friendship, Hot Springs County, about 11 miles from Arkadelphia; he is 31 years of age, raised in Clark County; that on November first he came to Arkadelphia; going from his home to the highway he flagged appellant's bus at a place where he had caught the bus many times; followed his usual custom in stopping the bus, paying his fare, and coming to Arkadelphia; the bus came by where appellee got on a little after two o'clock; when he flagged the bus it pulled up and stopped at the edge of the concrete and he caught hold of the bar with his left hand; the driver opened the door from his seat, and placed his right foot on the bottom step; when he started to raise his left foot his right foot slipped out from under him, jerked him loose from the bar he was holding and he hit the ground on the end of his back bone and left hip; something slick caused his foot to slip out from under him; this object was on the step; after he fell he got up and got on the bus and went in and sat down; paid his fare to the driver; after he got to Arkadelphia he was suffering so much that he went to see Dr. Bourland; the doctor gave him some rest tablets and liniment and then appellee went down to his brother's; later that day he came back into town and went to see a lawyer, after which he went home and went to bed. He then describes his injuries and suffering. It is unnecessary, however, to set out this testimony, because it is not contended that the verdict is excessive.
The testimony of Mr. McMahan, who lives at Friendship, shows that Jones came to his house to get on the bus to go to Arkadelphia; it was between one and two o'clock when he came, it was a clear day, and he was with Jones on the north side of the highway. The bus came along about two o'clock and Jones walked out and flagged it; the driver opened the door of the bus and as Jones put his foot on the step and started to lift his left foot, his right foot went out from under him; he fell to his left on his hip; after he fell he got up and went on the bus; witness saw something when Jones' foot slipped out from under him and went and picked it up; it was about a half of a banana peeling; it was not a fresh peeling, looked like it was about two or three days old; it was dark, or dark brown; the steps of this bus were also dark, and the banana peeling was something of the same color. He did not see the banana peeling on the step but saw something fall on the ground and wanted to know what Jones had stepped on that threw him; he took the banana peeling to the house and kept it until Jones came back and saw what caused him to fall like he did; showed the banana peeling to several persons; one of them was Mr. Charlie Garrett.
Charlie W. Garrett testified in substance that he saw appellee and as he stepped up with his right foot on the first step; about the time his left foot was leaving the ground he slipped backwards and fell on his left side; went up to the place where he fell after the bus left and Mr. McMahan showed him a banana peeling he had in his hand.
Dr. Bourland, a physician, of Arkadelphia, testified about treating appellee and the extent of his injuries.
The driver of the bus testified that the bus was inspected at Little Rock and there was no banana peeling on the step then. There is no evidence of any inspection of the steps from the time it left Little Rock until appellee's accident. The driver says that he is in sole charge of the bus after it leaves Little Rock, and that the bus stopped about five minutes in Malvern, which is several miles from Arkadelphia; that in that five minutes he inspected the tires, but did not give the bus a general inspection; he thinks he would have seen a banana peeling if one had been on the steps.
A number of other witnesses of appellant testify about the inspection of the bus in Little Rock.
When appellee attempted to get on the bus he put his right foot on the lower step and slipped on something slick which was on the step. McMahan saw him slip and saw some small object fall from the step to the...
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