Missouri Pacific Railroad Co. v. Sorrells

• Decision Date: 20 January 1941
• Docket Number: 4-6157
• Citation: 146 S.W.2d 704,201 Ark. 748
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. SORRELLS
• Court: Arkansas Supreme Court

146 S.W.2d 704

201 Ark. 748

MISSOURI PACIFIC RAILROAD COMPANY v. SORRELLS

4-6157

Supreme Court of Arkansas

January 20, 1941

Appeal from Saline Circuit Court; Thomas E. Toler, Judge; affirmed.

Judgment affirmed.

Henry Donham and Richard M. Ryan, for appellant.

Kenneth C. Coffelt and Wm. J. Kirby, for appellee.

OPINION

SMITH J.

Appellee recovered a judgment in the sum of $ 500 to compensate an injury sustained while attempting to debark from one of appellant's trains on which he was riding as a passenger. The testimony is in irreconcilable conflict; but it is insisted that the testimony on appellee's behalf when given its highest probative value, is insufficient to sustain the verdict and the judgment rendered thereon.

Appellee's testimony was to the following effect. He bought a ticket at Benton to Traskwood, and found a seat in the smoking-car. Two members of the train passed through the car while the train was going from Benton to Traskwood, about fifteen minutes being required for that trip. One of appellant's employees, a conductor, not then on duty, placed a small box in the vestibule of the car. The box was made of pasteboard, and was about 10 or 12 inches square and about 6 inches high, and contained only the cap of the conductor who was riding "deadhead," as he expressed it. According to the testimony of the conductor of the train, the box "was lying over the couplings on the right-hand side as they came out; it was not in the way."

It is certain that the box was in the vestibule, and according to appellee's testimony, it was in his way when he left the car. Just how it got "in the way" is not clear. The movement of the train may have placed it there. It is argued that, even though the box had gotten in the way, it had not been there long enough for its presence to be discovered. But, according to appellee's testimony, two members of the train crew went through the vestibule, not together, but first one, and then, later, the other.

Appellee testified that as he left the train, there was another passenger in front of him, and that ". . . the box was on the left-hand side, just as you turn to make the steps out of the train. I know the box was on the left-hand side, because I hit it with my left foot, and it got between my legs, and I plunged out to the bottom on the ground. As I started to make the turn I stumbled over the box and started to fall, and I grabbed at the railing and plunged plumb out on the ground." There was testimony sharply contradictory; but there was other testimony corroborating that of appellee. The truth of this testimony was, of course, a question for the jury. If this testimony is true--and its truth has been concluded by the verdict of the jury--we think it sufficient to support the finding that the presence of the box should have been discovered and its possible peril anticipated, had that high degree of care been exercised which the law imposed upon the carrier for the protection of its passengers.

Exceptions were saved to instructions numbered 1 and 2 defining this duty. These were to the effect that the "railroad company owed its passengers the highest degree of care which a prudent and cautious man would exercise reasonably consistent with its mode of conveyance and practical operation of its train during the time they are on the train or getting on or off thereof."

These instructions conformed to the law as it has been frequently declared, the case of Prescott & N.W. R. R. Co. v. Thomas, 114 Ark. 56, 167 S.W. 486, being one of many to that effect.

An exception was saved to instruction numbered 3, defining the measure of damages. This instruction reads as follows ...