Pine Bluff & Western Railroad Company v. McCaskill

• Decision Date: 23 November 1908
• Citation: 114 S.W. 208,88 Ark. 177
• Parties: PINE BLUFF & WESTERN RAILROAD COMPANY v. MCCASKILL
• Court: Arkansas Supreme Court

114 S.W. 208

88 Ark. 177

PINE BLUFF & WESTERN RAILROAD COMPANY v. MCCASKILL

Supreme Court of Arkansas

November 23, 1908

Appeal from Grant Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

T. M Mehaffy and J. E. Williams, for appellant.

1. There is no statutory provision for taking the testimony of a witness in the unusual manner adopted in taking the appellant's deposition in this case. While the statute permits the taking of a witness' deposition on account of infirmities, etc., that must be upon notice. It does not authorize the procedure followed here.

2. The court erred in refusing the fourth instruction requested by appellant. Certainly, the mere fact that appellee received a fall, and that the injuries were received while she was going on the train, did not entitle her to recover, but there must have been negligence on the part of appellant, either in the failure to perform some duty, or in performing it in a negligent manner. Other instructions given authorized the jury to find for plaintiff, if they found defendant guilty of negligence. Hence this instruction was necessary. 85 Ark 117.

Nixon & Shaw, for appellee.

1. The statute authorizes the taking of the deposition of a witness in case of infirmity, etc. Kirby's Digest, § 3157. The witness lived within three blocks of the court house, hence the statutes with reference to notice, while not in this case in writing, were substantially complied with. Id. §§ 3166, 3172. Appellant by counsel appeared and took part in the examination. It can not now complain. 15 Ark. 491; 9 Ark. 418; 87 Ark. 243.

2. The fourth instruction requested was fully covered by another given at appellant's request. The record ought not to be incumbered by a multiplicity of instructions announcing in effect the same legal principle. 43 Ark. 193; 51 Ark. 147; 52 Ark. 181; 46 Ark. 141; 34 Ark. 383.

OPINION

MCCULLOCH, J.

Mrs. M. E. McCaskill became a passenger on one of appellant's trains, and sues to recover damages for injuries alleged to have been received by reason of negligence of appellant's servant while she was boarding the train at Pine Bluff. Her contention, as set forth in her complaint and the testimony adduced in support of it, is that she was ascending the steps of the train with a suit case in her hand, and that the train porter undertook to assist her, and, while so doing, grasped hold of the suit case and negligently shoved it with sudden and violent force against her, so as to throw her down on the step or platform of the coach, thus inflicting serious injuries. Appellant's contention is that appellee tripped herself while ascending the steps of the coach by treading on her skirts, and that if she received any injury at all it resulted from that accident, and not on account of any negligence on the part of the train porter. There was evidence sufficient to sustain either theory.

The court submitted the case to the jury on instructions requested by each party, telling the jury in substance that, while it was not the duty of the train porter to assist appellee in getting on the train, yet, if he undertook to do so, it was his duty to exercise ordinary care, and that appellant would be responsible for any damage resulting from his negligence in this respect. Other instructions, given by the court at appellant's request, told the jury that, unless the alleged injury resulted from negligence on the part of the porter, or if it resulted from appellee's own negligence, the company would not be liable, and that the burden of proof was on appellee to prove that the injury was caused by a neglect of the porter.

In addition to this, appellant requested the court to give the following instruction, which was refused:

4. "If you believe from the evidence that the plaintiff did, in getting upon defendant's train, fall and was injured thereby, then, before she is entitled to recover against the defendant in this case, she must prove by a preponderance of the evidence that the defendant or its employees were guilty of negligence, either in omitting to perform some duty, or in the performance of such duty it owed the plaintiff, of which plaintiff complains, in boarding its said train which caused the injury."

This instruction was properly refused because it conflicts with the other instructions in stating that, in order to render appellant liable, there must have been...