Prescott & Northern Railway Co. v. Smith

• Decision Date: 21 December 1901
• Parties: PRESCOTT & NORTHERN RAILWAY COMPANY v. SMITH
• Court: Arkansas Supreme Court

67 S.W. 865

70 Ark. 179

PRESCOTT & NORTHERN RAILWAY COMPANY v. SMITH

Supreme Court of Arkansas

December 21, 1901

Appeal from Nevada Circuit Court, JOEL D. CONWAY, Judge.

Reversed.

Judgment reversed and remanded.

C. C Hamby, for appellant.

It was error to admit evidence tending to show that appellants since the occurrence of the accident, placed their engine in front of their train. 30 Minn. 465; 144 U.S. 202, 208; 11 Colo. 507; 51 Conn. 524; 132 Ill. 53; 45 Ia. 627; 59 Ia. 581; 154 Mass. 168; 86 Mich. 14; 77 Mo. 34; 68 N.Y. 547; 73 N.Y 471; 108 N.Y. 151; 131 N.Y. 382; 73 Tex. 355; 75 Tex. 155; 76 Wis. 71; 90 Wis. 22; 123 Ind. 15. It was error to give the fifth instruction asked by appellee. 5 Otto, 439; 55 Tex. 88; 83 Ill. 589; 14 Allen, 429. It is negligence per se for one to ride on the platform of a car when there is room inside. 72 Ala. 112; 51 Ill. 495; 99 Pa.St. 492; 20 Ia. 338; 10 Dradw. 311.

J. O. A. Bush, for appellee.

The evidence as to the change in the method of running the trains was competent on cross-examination of an unwilling or biased witness testifying as an expert as to what was dangerous in the management of trains. 1 Greenl. Ev. §§ 446, 449; 17 Mich. 100. The manner of running the train was in violation of the statute, and was per se negligent. Sand. & H. Dig., § 6195; 52 Ark. 517; 30 L. R. A. 510. If deceased was at fault in occupying the platform, that fault was directly traceable to the negligence of the appellant. 64 Am. Dec. 763; 123 Ill. 162; 10 S.W. 486; 10 Am. Law Reg. (N. S.), 615.

OPINION

RIDDICK, J.

This is an appeal from a judgment for $ 1,200 recovered by Mrs. Mary Smith against the Prescott & Northwestern Railway Company as damages for causing the death of her son, Ed. Mechlin. The defendant company was the owner and operator of a short-line railroad used mainly to carry logs, but passengers were also carried. On the day of the accident a train composed of nine freight and log cars and a caboose for passengers was backed along the railway of the defendant company, having the caboose in front and the engine in the rear pushing the train backward. Ed Mechlin, the son of the plaintiff, was a passenger on the train, and while the train was being thus operated the caboose left the track, and Mechlin, who was riding on the platform of the caboose, or was there in the attempt to escape from the caboose, was thrown to the ground and killed.

Our statute provides that "in forming a passenger train no baggage, freight, merchandise or lumber cars shall be placed in the rear of passenger cars, and if they, or any of them, shall be so placed, and any accident shall happen to life or limb, the officer or agent who so directed or knowingly suffered such arrangement, and the conductor or engineer of the train, shall each and all be held guilty of intentional wrong causing the injury, and be punished accordingly." Sand. & H. Dig., § 6195. It is obvious that this statute was not intended to apply only to regular passenger trains, for such trains do not carry freight or lumber cars. It was plainly intended to apply as well to mixed trains carrying both freight and passengers, and it requires that such trains shall be so formed that baggage, freight, merchandise or lumber cars" shall be placed in front of the passenger cars. The purpose of the statute was to protect passengers from the danger of being carried in cars placed in front of freight, lumber or other cars of that kind. If the defendant company was engaged in carrying passengers on this train for hire, then we think the statute applies, whether the passengers were carried in a caboose or in a regular passenger coach, and notwithstanding that the main business of the train was to carry logs. Now, it was alleged in the complaint that "Mechlin was a passenger on defendant's train going from Prescott to a point in Hempstead county," and this was not denied in the answer. The testimony of defendant itself showed that, while the train was a log train, yet it also carried passengers, and for that purpose had a caboose attached with seats inside for passengers, who under the rules were required to ride in the caboose. We must therefore take it as established, so far as this appeal is concerned, that the defendant company was engaged in carrying passengers for hire on this train, and that Mechlin was a passenger thereon at the time of the accident that caused his death. These facts being established, the statute applies, and it follows as a matter of law that the defendant was guilty of negligence in operating its train in a manner forbidden by the statute, and we think the facts in evidence were sufficient to support the finding of the jury that it was this negligence which caused the injury to Mechlin.

The defendant contends that Mechlin rode on the platform of the caboose, and was thus guilty of contributory negligence, which precludes a recovery. But the evidence tends to show that Mechlin did not ride on the platform as a matter of free preference. If he was there, the evidence tends to show that it was because the manner in which the train was being operated made it appear to him dangerous to stay in the caboose. It has often been decided that a passenger, placed in imminent peril by the negligence of the company, "may recover, in a proper case, for injuries received in attempting to escape or avoid it, if he exercised ordinary and reasonable care under the circumstances as they reasonably appeared to him at the time, although in acting upon the spur of the moment and under excitement he did not do what was best, or would not have been injured if he had done nothing but remain quiet." 4 Elliot, Railroad, § 1642, and cases cited. Now, at the time Mechlin was on the platform the train was being run backwards at considerable speed on a down grade, and was approaching a sharp curve in the track. Mechlin, a boy 18 years of age, was the only occupant of the caboose. The evidence tends to show that he was apprehensive that the train might be derailed and the caboose crushed by the heavy cars behind, and he feared that if he remained in the caboose, and an accident happened, he would be unable to escape in time to avoid injury. Under these circumstances, we think it was a question for the jury to determine whether or not he was guilty of contributory negligence. When all the instructions on that point were taken together, we think the question was fairly submitted to them, and their verdict should stand unless another ruling of the court, which we will next proceed to notice, calls for a reversal.

The court allowed the plaintiff to show to the jury that, after the accident and death of Mechlin, the company required its employees to change the manner of operating its train; that it required them to put the engine in front, and, when necessary to do so, to run the engine backward in front of the train, instead of backing the whole train with the caboose in front. We are of the opinion that this evidence should not have been admitted. As was said by the supreme court of Minnesota, there is "no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected...