Missouri Pacific Railroad Company v. Kirby

• Decision Date: 20 February 1922
• Docket Number: 162
• Citation: 237 S.W. 687,152 Ark. 90
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. KIRBY
• Court: Arkansas Supreme Court

237 S.W. 687

152 Ark. 90

MISSOURI PACIFIC RAILROAD COMPANY v. KIRBY

No. 162

Supreme Court of Arkansas

February 20, 1922

Appeal from Cross Circuit Court; R. H. Dudley, Judge; reversed.

Judgment reversed and cause remanded.

Thomas B. Pryor and Daggett & Daggett, for appellant.

The instruction numbered 6, given by the court, was abstract and misleading. Its effect was to allow the jury to consider evidence insufficient to support a verdict. Worthen v. Smith, 149 Ark. 278. Proof that the company received cotton at the gin platform at some isolated and remote town is not sufficient to establish a custom. 17 Ark 428; 58 Id. 125; 137 Id. 137. Evidence sufficient to establish a local custom must be clear and convincing, and show that it had existed long enough to have become generally known. 108 Ark. 437; 105 Id. 518.

Number 2 requested by appellant was intended to cover the failure of appellee to prove the custom, and to prevent the jury from finding for him, if they found the injury occurred on the gin platform. It was error to refuse this instruction. Proof that the injury occurred on the railroad platform raises no presumption of negligence. 20 R. C. L. § 52; 94 N.W. 64; (Ky.) Ann. Cases, 1915-D, 861. In view of appellee's positive testimony that the injury occurred on the railroad platform, there being no proof of negligent maintenance, the question of the exercise of reasonable care by the appellant was material; and if there was a defect in the platform which was not apparent, or discoverable by the exercise of ordinary care, the accident was unavoidable, and the appellant was not liable. This principle is recognized, inferentially, in these cases. 89 Ark. 122; 77 Id. 561.

John W. Brawner and J. F. Gautney, for appellee.

1. Appellant was required to keep its platform in reasonably safe condition, and it failed to exercise ordinary care in that respect, and injury resulted as a consequence thereof. It is liable to the party injured, if he was on the premises for the purpose of transacting business with the company, and was himself not guilty of contributory negligence. 22 R. C L. 904; § 150; 100 Ark. 433; 96 Id. 311.

2. Instruction 6 was justified by the evidence. It was sufficient to establish the fact that appellant used the gin platform for the purpose of receiving cotton for shipment and that on this occasion appellee was acting under the direction the agent in placing the cotton. The obligation to exercise ordinary care extends to premises used by the railroad, though it may not be the owner thereof. 102 Ark.

It was not necessary for appellee to prove a custom. The railroad company had the right to select a place at which it would receive shipments,--and in this instance exercised it. 16 Am. Rep. 618; 80 Ky. 82.

OPINION

WOOD, J.

This is an action by the appellee against the appellant for damages for personal injuries. The appellee alleged that on the 19th of November, 1920, he delivered on the cotton platform of appellant in the town of Parkin, Arkansas, one bale of cotton which appellant's agent received and tagged; that thereafter such agent directed the appellee to move the cotton to another point on the platform, and, while undertaking to move the cotton as directed by the agent, a defective plant in the platform broke and caused the injury to the appellee to his damage in the sum of $ 1,800, for which he prayed judgment. The appellant, in its answer, denied all the material allegations of the complaint and alleged that, if the appellee was injured, his injury was due to his own negligence.

The appellee testified that on the evening of November 19, 1920, he went to Parkin for the purpose of shipping a bale of cotton. He got a dray to haul it and put it on the railroad platform. He put the tag on the bale of cotton and waited until the agent came. Appellee told the agent that he had a bale of cotton he wanted the agent to get out. The agent said, "All right," and got up on the platform, and sat down on the bale of cotton, and wrote out the bill of lading. He then said, "You will have to move this bale of cotton." Appellee then called upon two gentlemen who were near to assist him. There was a box car standing on the north end of the switch at the north end of the platform ready for the cotton to be loaded. It was some sixty feet from where the cotton was to this car, and in rolling it they could not roll it flat-ways but had to "end it over and over." In doing so appellee was right behind the bale of cotton and stepped into a hole with his left foot, and that threw the bale of cotton back against him. It struck him in the left side, and appellee had been suffering every minute since. The agent did not assist the appellee and the men in moving the bale of cotton. When appellee stepped in the hole and the bale struck him in the side, it fractured some of his ribs and knocked the breath out of him for a minute or more.

Appellee then further describes his injuries, his suffering, and his treatment by his physician, which it is unnecessary to set forth. Appellee was asked the following question: "Q. You say that bale of cotton was on that railroad platform over there?" And answered, "If it wasn't put on the railroad platform, there never was one." A plat was exhibited to the appellee, and he described the direction that he and his assistants went over the platform in moving the bale of cotton and the place where he was hurt. He stated that he again examined the platform the first time he went back to Parkin after he was hurt, about ten days after. He had his rule with him and measured the hole and found that it was about 24 inches long and about six inches wide. He was asked, "Was that on the railroad platform?" and answered "Yes, sir." The agent never gave the appellee any bill of lading until after he got hurt.

On cross-examination the appellee, in answer to questions, stated that the railroad platform and the gin platform formed an "L" in there on the east side. He backed the dray into that "L." He then stated that the railroad platform ran north and south, and the gin platform ran east from the railroad platform. Appellee further stated that he supposed the railroad platform was 24 feet wide and 65 or 70 feet long. The appellee stated that they couldn't roll the bale flat-ways because the platform was full of cotton--"had to roll it around and end it over." He was asked, "Was there any cotton on the gin platform?" and answered, "Plenty of it." He stated that there was very little room for the cotton on the platform at the place he unloaded the bale. He again repeated that he knew it was on the railroad platform. He also said that they received cotton over both platforms. He didn't go around before moving the bale to see whether there were any boards or rotten planks in the platform or not. Appellee saw the hole that he fell through on the day of his injury, but didn't see it before he fell. It looked like a fresh break when his leg went through it. The appellee was asked if he did not tell Mr. Matheney that he got hurt on the gin platform and answered, "No, sir, nor nobody else." He was asked if the railroad company maintained the gin platform and answered that he did not know about that, but they used it, and stated also that the gin company used it. He was again asked if he hadn't stated to Doctor Smith, in describing his injuries, that he got hurt on the gin platform of Head & Beaty and was going to make them pay for it, and answered, "No, sir."

The claim agent of appellant testified that he was acquainted with the railroad company's platform at Parkin where the injury is alleged to have occurred; that he went to that platform a short time after the alleged injury to examine it. He made a careful examination and stated that it was 22x60 feet. He found that it was comparatively new, and at the time he examined it comparatively full of cotton. It was floored with 2-inch lumber apparently sound. There was absolutely no break in the platform, and no evidence of any recent repairs and none yet. He had pictures made of the railroad company's platform and of the gin platform. The pictures, after proper identification, were submitted to the jury.

The station agent at Parkin testified that the railroad platform at the time of the alleged injury to the appellee (November 19, 1920) was in good condition. They trucked over it and went over it with their feet, and that it was in good condition. He was asked about the condition of the other platform, and the attorney for the appellee objected to the question. The court overruled the objection, and the witness then stated that the gin platform was dangerous. It was full of holes-- some of them large ones. He further stated that the only place that the...