Missouri Pacific Railroad Company v. Kennedy

• Decision Date: 03 April 1922
• Docket Number: 278
• Citation: 239 S.W. 376,153 Ark. 77
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. KENNEDY
• Court: Arkansas Supreme Court

239 S.W. 376

153 Ark. 77

MISSOURI PACIFIC RAILROAD COMPANY v. KENNEDY

No. 278

Supreme Court of Arkansas

April 3, 1922

Appeal from Ashley Circuit Court, Turner Butler, Judge; affirmed.

Judgment affirmed.

E B. Kinsworthy, B. S. Kinsworthy, for appellant.

Appellee had no primary right to board the moving train and was guilty of contributory negligence in doing so. 179 S.W. 417, L. R A. 1916-B, 830; 116 Iowa 279, 90 N.W. 59; 86 Ark. 325. The failure to stop a train at the usual place will not justify a person in trying to board it while in motion. 118 Ga. 259, 45 S.E. 268; 67 Miss. 601, 7 Sou. 401; 108 N.C. 34, 12 S.E. 958; 51 Tex. 189; 10 C. J. p. 1104-5, p. 1488; White, Pers. Inj on Railroads, § 783, p. 1176. There was no invitation on the part of any servant of the company for appellee to board the moving train, which might in some measure tend to relieve him from negligence. 45 Ark. 256; 10 C. J. p. 1105, par. 1488; 86 Ark. 325; 99 Ark. 248; 108 Ark. 292; 122 Ark. 429.

Appellant's instruction No. 14 declared the law with reference to a person boarding a moving train without invitation to do so by a servant of the company, and should have been given. 84 A.D. 414, 82 N.Y.S. 307; 36 F. 879; 133 Ill. A. 503; 77 Ill. A. 66; 210 Pa. 363, 2 Ann. Cas. 938, note.

Persons who voluntarily put themselves in places of danger assume the risk. 86 Ark. 325; 99 Ark. 248; 129 Ark. 257; 128 F. 540; 90 Ill. 586; 87 N.J.L. 284; 141 N.W. 353; 31 S.D. 512. Appellant's instruction No. 4, refused, covered this question.

Appellant's refused instruction No. 11 would have told the jury to find for appellant if the employees of defendant did not see appellee in a dangerous position, or know that he intended to board the moving train. This is the law. 179 S.W. 417; L. R. A. 1916-B 830; 59 Ill.App. 620; 139 Mass. 238; 31 K. L. Rep. 679.

Appellant's instruction No. 8 on the question of negligence should have been given. 210 Pa.St. 263.

It was error to give instruction No. C asked by appellee on the question of custom of stopping the caboose at the station, since no custom was established by the evidence. 112 Ark. 446. Appellant's requested instruction No. 5 as to the obligation of the company to stop at a designated place, in the absence of passengers, should have been given. 143 Ark. 135.

Compere & Compere, for appellee.

Lundell was a regular station, and from information and presumption appellee thought the train would stop there. 66 Ark. 543; 135 Ark. 546.

Instructions B and E, taken together, properly stated the measure of damages. 233 S.W. 683.

Appellee did not lose his rights as a passenger when he got off the train. 82 Ark. 393; 88 Ark. 225; 10 C. J. 628, sec. 1051.

It is not negligence per se to board a moving train. 86 Ark. 325; 101 Ark. 128.

OPINION

SMITH, J.

Appellee became a passenger on one of appellant's local freight trains at the town of Ferguson, with a ticket to the town of Mellwood. When the train arrived at the intervening station of Lundell, it stopped with the caboose some distance from the station platform. Lundell was a small station at which no depot was maintained, but tickets were sold there, and a passenger train each way each day stopped there regularly. Another passenger train stopped there when flagged. Appellee left the train at Lundell and went to a store of a customer, to whom he sold goods. This store was near the railroad and just off the right-of-way. Before leaving the train, appellee asked the brakeman if the train would stop a second time with the caboose at the station platform, and the brakeman answered that it would. There was also testimony that it was the custom to stop the train with the caboose opposite the platform before the train pulled out of the station. The members of the train crew testified, however, that there was no such custom except when there were passengers to be received or discharged, and that on the occasion in question there was no passenger to or from Lundell, and the conductor testified that, before giving the signal for the train to pull out of Lundell, he looked and saw that there was no one standing at the platform to take passage on the train. Appellee admits that he was not standing at the platform when the train was set in motion, but he reached the platform before the caboose passed that point, and the train did not stop as appellee had been told it would do. Appellee had some grips and other baggage in the caboose, and when it came by him he undertook to swing on at the rear steps of the caboose, but his hand slipped and he fell and broke his arm and sustained other injuries, to compensate which he brought this suit and was awarded damages in the sum of $ 500, from which is this appeal.

Appellee was a commercial traveler, and testified that Lundell was in his territory, and that for a period of six years and a half he had been making that point, and that he generally used this local freight train in doing so, and that it had always been the custom for the train to stop at the platform. There was testimony corroborating appellee, although, as has been said, the testimony on the question of this custom was not undisputed, and the brakeman denied having told appellee that the train would stop a second time, and there was testimony also on the part of the railroad company that the brakeman had no authority to make statements in regard to the movement of the train.

Several instructions requested by the railroad company were refused, among which was one for a directed verdict in its favor. Other instructions were given, however, at the request of both appellee and the railroad company. We do not set out or discuss all these requested instructions, as we find it unnecessary to do so to announce the law applicable to the issues joined.

The theory on which the cause was submitted clearly appears from an instruction numbered 10 requested by the railroad, and which we do set out. As requested, this instruction reads as follows: "The court instructs you that the uncontradicted evidence in this case shows that the conductor was in charge of the train upon which plaintiff was riding; that he alone had authority to govern the movement of said train, and that the brakeman would not and could not know, without being advised by the conductor, what would be the movement of the train. So the court tells you that the brakeman had no authority to make any statement as to whether the train would or would not stop at Lundell the second time, and that the defendant would not be bound by any statement made by the brakeman, as his statement would simply be a matter of opinion as given by any outsider, and the plaintiff had no right to rely upon any statement made by said brakeman." The court struck out the last clause of the instruction reading as follows: "as his statement would simply be a matter of opinion as given by any outsider, and the plaintiff had no right to rely upon any statement made by said brakeman," and, in lieu thereof, added the following: "unless the statement of the brakeman was in accord with the custom, if any, of the defendant in stopping their trains at Lundell."

It thus appears that the court accepted the view of appellant that appellee had no right to rely on the statement made by the brakeman in regard to the movement of the train unless his statement conformed to the customs of the railroad.

We think no error was committed in modifying the instruction in the manner indicated. Indeed, after its modification, it was still more favorable than appellant was entitled to have it. It is true the brakeman was shown to have no authority to direct the movement of the train except as he received orders to that effect from the conductor. But the brakeman's statement to appellee did not relate to any order in regard to the movement of the train which he (the brakeman) had agreed to give. He merely stated to appellee what the custom was in regard to stopping the train and what would be done that day. The brakeman would have no authority to agree what movement the train would make, but we do not have that question before us. If the brakeman knew under what orders the train would...