Missouri Pacific Railroad Company v. Hanna

• Decision Date: 29 January 1923
• Docket Number: 130
• Citation: 247 S.W. 1044,157 Ark. 32
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. HANNA
• Court: Arkansas Supreme Court

247 S.W. 1044

157 Ark. 32

MISSOURI PACIFIC RAILROAD COMPANY v. HANNA

No. 130

Supreme Court of Arkansas

January 29, 1923

Appeal from Poinsett. Circuit Court; J. M. Futrell, Judge; affirmed.

Judgment affirmed.

Thos B. Pryor, and Gordon Frierson, for appellant.

1. The question of liability in this case is to be determined according to the law of the State of Illinois, where the injury occurred. 194 F. 79, 114 C. C. A. 157; 113 Ark. 265; 142 Ark. 59; 78 S.E. 925; 119, N. E. 539; Hutchinson on Carriers, § 205; Elliott on Contracts, § 3313.

2. Under the law of the State of Illinois appellee cannot recover in this action. 229 Ill. 608, 82 N.E. 403; 85 F. 945 948; 171 N.W. 86. The contract involved was a rule and regulation of the company on the subject of transporting shippers in charge of livestock, which the conductor had no right to abrogate. Elliott on Railroads, § 2391; Id. 2480.

3. Instruction numbered 2 given by the court was erroneous in assuming that the conductor acted within the scope of his authority, and also in assuming that if he did invite plaintiff to alight from a moving train, such conduct constituted negligence on his part as a matter of law whereas the question of negligence was one for the jury. 66 Ark. 109; 98 Ark. 370; 11 Ark. 309; 97 Ark. 438.

Irving M. Greer, for appellee.

1. The validity of the contract, which was made in this State, will be determined by the law of this State. 5 R. C. L. § 670; 174 Ill. 13; 50 N.E. 1097; 189 F. 153; 10 C. J., 1164, Carriers; 227 F. 127; 29 C. C. A. 503.

2. Negligence on the part of the railroad company or its employees deprives it of any protection under the contract, 1st, because such a contract is void as against public policy, and 2nd, because, under the statutes of this State, such a contract is void and not enforceable. 5 R. C. L. § 665; Id. 667; 200 F. 197; Id. 207; 174 Ill. 13; 50 N.E. 1019; 40 Ark. 298; 105 Ark. 340; C. & M. Digest, §§ 843, 844. The procedure is governed by the lex fori. 113 Ark. 265. If negligence can be attributed to the defendant, liability attaches, irrespective of the contract. 4 R. C. L. § 596.

3. Instruction No. 2 was correct, and properly assumed that the conductor was acting within the scope of his authority, and also in assuming that he was guilty of negligence as a matter of law, in inviting the plaintiff to alight from the moving train. 88 Ark. 12, and cases cited; 113 Ark. 265; Minor, Conflict of Laws, 486; 108 Ark. 292; 177 Ind. 126; 97 N.E. 434; Ann. Cases, 1914-C, 1272.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellant in the Poinsett Circuit Court to recover damages in the sum of $ 2,000, on account of injuries received in alighting from its train at Gale, Illinois, through the alleged negligent act of its conductor in inviting and advising him to get off at that place. It was alleged that appellee was, at the time, accompanying a shipment of stock from Harrisburg, Arkansas, to St. Louis, Missouri, and in obedience to the advice of the conductor did alight from said train, with the result that he was thrown to the ground and seriously and permanently injured; that at the time it was so dark he could not tell how fast the train was moving, and in debarking acted solely upon the advice of appellant's employee.

Appellant filed an answer admitting that appellee was a passenger upon said train, accompanying a stock shipment to St. Louis, but denied all other material allegations in the complaint. Appellant also interposed the following defenses:

First, contributory negligence on the part of appellee in alighting from a moving train.

Second, the written contract for transportation, which required the appellee to remain in the caboose attached to the train, while the train was in motion, and to get on and off the caboose while the same was still.

The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment against appellant in the sum of $ 2,000. From that judgment an appeal has been duly prosecuted to this court.

Appellee, plaintiff below, introduced testimony to the effect that early in January, 1921, he shipped two carloads of cattle and one carload of hogs to St. Louis Missouri, from Harrisburg, Arkansas; that he accompanied the livestock, riding by right as a passenger in the caboose; that when they were getting into Gale, Illinois, the conductor told the passengers to get off at the yard house, and it would save them walking through the dark yards; that it was then about nine o'clock, and dark; that all of them got their baggage and followed the conductor to the door for the purpose of debarking; that, while standing in the door, the conductor again told them to get off; that the conductor got off first, J. E. Arnold next, and appellee next, who, by reason of the rapid movement of the train, was thrown violently to the ground, some twelve feet distant, and injured; that at the time he stepped off he thought the train was barely moving.

Appellant introduced testimony to the effect that the conductor told the passengers, if the train stopped at the hill, to get off so they would have time to eat; that the train was slowing down, and the conductor remarked, "I believe we are going to stop at the hill"; that the engineer took slack and started down the hill, whereupon the conductor told the passengers not to get off until they reached the bridge, about one hundred yards below the yard house; that the conductor himself got off at the yard house in order to register the train in; that Arnold succeeded in getting off safely, but that appellee fell in the attempt to do so. Appellant also introduced the bill of lading for the shipment of the livestock upon which appellant traveled, which contained a provision to the effect that the party in charge of the stock should remain in the caboose attached to the train while in motion, and to get on and off the caboose while the same was still.

Appellant's main contention for reversal is that, according to the undisputed facts, app...