Payne v. Thurston

• Decision Date: 09 May 1921
• Docket Number: 316
• Citation: 230 S.W. 561,148 Ark. 456
• Parties: PAYNE v. THURSTON
• Court: Arkansas Supreme Court

230 S.W. 561

148 Ark. 456

PAYNE v. THURSTON

No. 316

Supreme Court of Arkansas

May 9, 1921

Appeal from Logan Circuit Court, Southern District; James Cochran Judge; affirmed.

Judgments affirmed.

Thos S. Buzbee, Geo. B. Pugh and A. S. Buzbee, for appellant.

1. It is apparent that appellant was guilty of no negligence, and a verdict should have been directed for defendant. It was the duty of the carrier to allow a reasonable time and opportunity to get on and off its trains and trains must stop at stations long enough for that purpose. A reasonable time is such time as a person of ordinary care and prudence should be allowed to take. It is the duty of the carrier in determining what is a reasonable time to take into consideration any special conditions peculiar to the passenger and the surroundings at the station and give a reasonable time under existing circumstances as they are known, or should be known, by the carrier's servants for a passenger to get on or off its trains. 105 Ark. 269; 101 Id. 183. The testimony is undisputed; shows that the carrier performed its whole duty, and there was no negligence nor liability. 117 Ark. 483; 101 Id. 532.

No negligence of the carrier was shown. No disability was shown in Mrs. Thurston, and in the absence of any notice of disability appellant owed no duty to her other than that allowed the ordinary passenger. 115 Ark. 505.

2. Under the authority of 115 Ark. 505, it was error to give instructions Nos. 8 and 9 for appellee, without also giving at the same time, Nos. 3 and 4 requested by appellant. The condition and needs of a passenger must be made known to the carrier or its servants. 115 Ark. 505.

3. It was prejudicial error to admit the testimony of John A. Scott. It was hearsay and inadmissible. 78 Ark. 220; 114 Id. 56.

4. Hypothetical questions which were erroneous were permitted to be asked which were clearly prejudicial. 136 Ark. 83; 130 Id. 456.

John P. Roberts and Evans & Evans, for appellees.

1. Where an injury is caused by the operation of a railway train, a prima facie case is made against the company operating the train. 73 Ark. 548-53; 131 Id. 571.

2. It is the duty of a carrier to stop its trains long enough for passengers to get off and on its trains. A reasonable time must be allowed under all the circumstances of the case. It is the duty of the carrier to determine what is a reasonable time from the circumstances that are known, or should be known, to it. 128 Ark. 479; 73 Id. 548. A railroad must take notice of all things it should have taken notice of in the exercise of the highest degree of care due to passengers on its trains. Railroads are held to the highest degree of care reasonably consistent with their mode of conveyance and the practical operations of trains. 99 Ark. 365; 105 Id. 269. A carrier must give a reasonable time for passengers to alight. 2 Hutchinson on Carriers, § 1118.

3. There is no error in the instructions. They state the law correctly; nor was incompetent testimony admitted.

4. The testimony clearly showed that the injury to Mrs. Thurston by her fall hastened her death, and any injury which hastens death causes it within the meaning of the law. 50 Ark. 545; 1 Hale P. C. 428.

Where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury. 129 Ark. 520; 130 Id. 435.

OPINION

WOOD, J.

An action was brought by Henry Thurston, appellee, who was the husband of Dora Thurston, to recover judgment against the appellant for damages which he alleged he sustained by reason of the death of his wife. The appellee, among other things, alleged that Mrs. Thurston was a passenger on appellant's train from Booneville, Logan County, Arkansas, to Waveland, Yell County, Arkansas; that the agents of appellant negligently failed to stop and hold the train at Waveland for a sufficient length of time to allow Mrs. Thurston to alight in safety; that they negligently failed to furnish her with the necessary assistance and means to enable her to safely debark from the train; that by reason of the acts of negligence alleged, Mrs. Thurston fell while endeavoring to alight from the train and received injuries which produced and hastened her death, to his damage in the sum of $ 3,000, for which he prayed judgment.

The appellee, Charles I. Evans, as administrator of the estate of Mrs. Thurston, instituted an action against the appellant to recover damages for the benefit of the children of Mrs. Thurston. The acts of negligence alleged in his complaint are the same as those set forth in the complaint of the appellee, Henry Thurston. Appellee Evans alleged damages also in the sum of $ 3,000, for which he asked judgment. The answers denied the allegations of negligence and damages and denied liability. The causes were consolidated for trial and were sent to a jury. The trial resulted in verdicts and judgments in favor of the appellees, from which is this appeal.

1. The appellant contends there was no evidence to sustain the allegations of negligence in the complaint. The facts on the issues are substantially as follows:

About July 1, 1919, Mrs. Thurston, in company with her little girl and carrying such baggage as she needed for a trip, boarded appellant's train at Booneville, Logan County, Arkansas, for appellant's station at Waveland, Yell County, Arkansas, a distance of about eighteen miles. Mrs. Thurston had been ill for some years with tuberculosis, though at that time she was better and was going on a visit to her mother for the benefit of her health. The train on which Mrs. Thurston took passage was about five hours late. It arrived at Waveland about two o'clock p. m.

A witness who lived at Waveland observed Mrs. Thurston attempting to get off the train after it had started. He was standing close to the steps and heard Mrs. Thurston holler and she kept hollering to let her off. Witness took hold of the little girl and set her off, and as she looked around Mrs. Thurston stepped off of the steps and got down and fell over on one leg and knee. She fell in an effort to get off of the train as it was starting. When witness heard Mrs. Thurston hollering after the train started, somebody began to flag the train. It did not stop until after Mrs. Thurston got in the waiting room. No one else got off there, and witness did not see any one get on. Neither the conductor, the porter, nor the brakeman were there. The train moved five or six feet before it stopped. It was barely moving when she stepped off. She got down on one leg and on both hands. Witness did not assist her at all. The train was barely moving when witness helped the little girl off. Witness did not get to Mrs. Thurston before she got up. Witness did not know whether Mrs. Thurston kicked the step box off or not, but it fell off.

Another witness saw Mrs. Thurston while she was waiting to take the train that day, and she looked like she had been sick. Another witness, who was on the train when it reached Waveland, stated that she heard the step box fall and looked around and saw Mrs. Thurston on one knee on both her hands on the ground. The train was then moving slowly. Mrs. Thurston got up and went to the station.

The conductor of the train testified that the first he saw of Mrs. Thurston was when she was right in front of the freight room, probably going into the waiting room. The porter had told him that some lady had fallen. He went back and asked her about getting off and asked her if she was hurt, and she stated that she was frightened more than anything else. This occurred in the waiting room. The witness looked after the unloading of passengers from the white passenger coach. He did not see Mrs. Thurston attempting to get off. The train was a vestibule train. Witness had been off the train at the front end of the chair car. They had a porter and a brakeman that day. The brakeman was back three or four car lengths protecting the rear end of the train. After the passengers were unloaded and loaded, witness and porter and brakeman went up to the express car. They stayed there three or four minutes. The brakeman's duties required him to be back at the rear end of the train. When the witness took up the ticket from Mrs. Thurston, she did not say anything to witness about being sick, and she was sitting in a seat just like the rest of the passengers. Witness did not pay any attention to her.

Another witness on behalf of the appellant testified that he was the station agent at Waveland and that he remembered the time Mrs. Thurston came down there and got off the train while it was just moving up. He saw her in the waiting room--was there when the conductor asked her if she was hurt and she said she was not. Witness heard her say that she stepped off of the train and fell.

In Barringer v. St. L., I. M. & S. Ry. Co., 73 Ark. 548, 85 S.W. 94, we said: "But the law is that it is the duty of carriers to allow their passengers a reasonable opportunity of getting on or off their trains, and they must stop at stations long enough for that purpose. A reasonable time is such time as a person of ordinary care and prudence, under the circumstances, should be allowed to take. It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger, and to the surroundings at the station, and to give a reasonable time under the existing circumstances, as they are known, or should be known, by its servants, for a passenger to get on or off its train." St. L., I. M. & S. Ry. Co. v Trotter, 101 Ark. 183, 142 S.W. 189; St. L., I. M. & S. Ry. Co. v. Wright, 105 Ark. 269; St. L., I. M. & S. Ry. Co. v. Aydelott, 128...