Missouri Pacific Railroad Company v. Henry

• Decision Date: 02 March 1925
• Docket Number: 213
• Citation: 269 S.W. 51,168 Ark. 146
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. HENRY
• Court: Arkansas Supreme Court

269 S.W. 51

168 Ark. 146

MISSOURI PACIFIC RAILROAD COMPANY v. HENRY

No. 213

Supreme Court of Arkansas

March 2, 1925

Appeal from Randolph Circuit Court; John C. Ashley, Judge; affirmed.

Judgment affirmed.

Thomas B. Pryor and H. L. Ponder, for appellant. The court should have directed a verdict for appellant. This is entirely unlike that in 110 Ark 232, relied on by appellee in the trial court. Appellee was guilty of contributory negligence and not entitled to recover in that he attempted to board a fast moving train, which was an obviously dangerous thing to do. 5 R. C. L. 680; 43 L. R. A. 297; 9 L. R. A. (N. S.) 848; 56 S.E. 748; 100 Mo. 194; 114 N.W. 571; 36 Ark. 867; 5 Am Rep. 109; 92 Am. Dec. 322; 23 N.E. 973. 61 Am. Dec. 214. Instruction No. 1 was error. The fact that appellee was injured by a moving train was not prima facie negligence on the part of appellant. 75 Ark. 479. Before there could be a presumption of negligence on the part of the appellant, the plaintiff must prove that he was in the proper place. 163 F. 106; 40 Ark. 298; 69 Ark. 380; 82 Ark. 522; 131 S.W. 958. Instruction No. 3, based on § 960, C. & M Digest, was erroneous, as that statute imposes a penalty fine. 110 Ark. 367.

Geo M. Booth and Tom W. Campbell, for appellee. Appellee had the right to leave the train for exercise and air, and in so doing did not lose his character as a passenger. 153 Ark. 77; 88 Ark. 225; 82 Ark. 393. It is a question for the jury to determine whether or not it constituted contributory negligence to board a slowly moving train. 110 Ark. 232; 153 Ark. 77; 82 Ark. 393. Proof that injury was caused by the movement of a train makes a Triton facie case of negligence against Company. 119 Ark. 179; 88 Ark. 12; 73 Ark, 548; 105 Ark. 180. Knobel was a junction, such as is referred to in 960 C. & M. Digest, and it was proper to give instruction No. 2. Contributory negligence would not defeat recovery, but only diminish it. 153 Ark. 77. Plaintiff was entitled to an attorney's fee under § 851, C. & M. Digest.

OPINION

HUMPHREYS, J.

Appellee brought suit against appellant in the circuit court of Randolph County to recover damages in the sum of $ 3,000 on account of an injury received while attempting to board its mixed freight and passenger train at Knobel, en route to Peach Orchard. The complaint alleged, in substance, that, on the 5th day of October, 1923, appellee was at Knobel, a junction station on the line of appellant's railroad, and that he purchased a ticket at Knobel for Peach Orchard, entitling him to ride as a passenger on the local freight train running between said towns; that, at the time, said train was switching at Knobel, and that he was informed by those operating the train that, after they got through switching, they would stop at the depot for passengers; that said train passed the depot without stopping, and, while same was moving slowly, he attempted to board the caboose, and was jerked by the train; thrown to the platform, and injured.

Appellant filed an answer denying the material allegations of the complaint, pleading contributory negligence and assumption of the risk by appellee in attempting to board the train.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a verdict and consequent judgment against appellant for $ 2,000, from which is this appeal

The first insistence of appellant for a reversal of the judgment is that the court erred in refusing to instruct a verdict for it, because appellee left the caboose after purchasing his ticket and boarding the train; second, that appellee was not at the depot when the local freight train came by, and that he attempted to board the train 150 feet north of the station platform; and, third, that appellee attempted to board the train when it was moving fifteen miles an hour, and, in doing so, was guilty of such contributory negligence as precluded, him from recovering for the injury.

(1) The undisputed testimony shows that appellee arrived at Knobel on an incoming train at 1 :30 o'clock P. M.; that he immediately purchased a ticket and boarded the mixed train, then switching in the yard, for Peach Orchard, the point to which he was going; that it was not very light in the caboose, and, after ascertaining that the train would stop at the depot for passengers and would not leave for forty-five minutes, he got out of the caboose and went up to the depot to await its arrival. We do not think it was incumbent upon appellee to remain in the caboose while the train was being switched about in the yard. It was his right and privilege to debark and wait for the train at the depot. This court held in the case of St. L. I. M. & S. R. Co. v. Glossup, 88 Ark. 225, 114 S.W. 247, that "a passenger is not compelled to continuously remain aboard the train until he reaches his destination. He may, at regular stopping places, leave the train for refreshment, exercise, or other matters of convenience or necessity, provided he exercises proper care." The same doctrine was announced in the recent case of Missouri Pacific Railroad Co. v. Kennedy, 153 Ark. 77, 239 S.W. 376.

(2). The second reason assigned by appellant in support of its contention that it was entitled to a peremptory instruction is not tenable, for the testimony is in sharp conflict as to whether appellee attempted to board the caboose at the depot. The testimony most favorable to appellee upon the point is that he attempted to board the train almost in front of the depot, and Where passengers usually get on the train.

(3). The third reason assigned by appellant in support of its contention that it was entitled to an instructed verdict is likewise not sound, because the testimony is in conflict as to whether the train was moving slowly or rapidly when appellee attempted to board the caboose. The testimony most favorable to appellee upon the point is that the train failed to stop at the depot for passengers, and that, when he attempted to board the caboose, the train was moving not to exceed four or five miles an hour. This court has held in several cases that the question of whether or not an attempt by a passenger to board a slowly moving train constitutes contributory negligence, is one for the jury. Arkansas Cent. Rd. Co. v. Bennett, 82 Ark. 393, 102 S.W. 198; St. L. I. M. & S. R. Co. v. Green, 110 Ark. 232, 161 S.W. 148; Mo. Pac. Rd. Co. v. Kennedy, 153 Ark. 77, 239 S.W. 376.

The...