Prescott & Northwestern Railroad Company v. Thomas
| Decision Date | 18 May 1914 |
| Docket Number | 321 |
| Citation | 167 S.W. 486,114 Ark. 56 |
| Parties | PRESCOTT & NORTHWESTERN RAILROAD COMPANY v. THOMAS |
| Court | Arkansas Supreme Court |
Appeal from Nevada Circuit Court; Jacob M. Carter, Judge; affirmed.
Judgment affirmed.
McRae & Tompkins, for appellant.
1. Complaints made by the appellee concerning her injuries to visitors two weeks after the accident were not competent, and should have been excluded. In the Jackson case, 93 Ark. 125 relied on by appellee, the complaints were made immediately after the accident. Here they were too remote, and made moreover, as the proof shows, after appellee had decided upon a suit against appellant. 105 N.Y. 294, 59 Am. Rep. 506; Jones on Evidence (2 ed.), § 349; 16 L. R. A. 436.
2. Instruction No. 1, given by the court, errs in requiring the highest degree of care. That rule applies only to appliances and machinery. See 65 Ark. 255; 111 N.Y. 488; 48 N.Y.S. 630.
3. There is no proof, nor any suggestion of proof, that cantaloupe seed on the steps of the car caused appellee's feet to slip, and there was therefore no evidence on which to base the fourth instruction. 88 Ark. 454; Id. 594; 89 Ark. 279; 5 Crawford's Dig., 1679, § 63, et seq.
4. The court erred in refusing to give instruction 8, requested by appellant. Without this instruction, an absolute duty was imposed on appellant to remove the seed. Surely, the jury ought not to have been left to infer that the mere presence of the seed on the steps would constitute negligence. 2 White on Personal Injuries, § 681; 64 N.J.L. 707, 50 L. R. A 470, 46 A. 710; 159 Pa. 364, 28 A. 140; 113 Pa. 300; 11 Del. C. Rep. 242; 27 Ind.App. 500; 69 A. 338, 15 L. R. A. 523; 79 N.E. 1094; 35 L. R. A. (N. S.) 592; 179 Mass. 52, 22 A. 708.
5. It is the duty of train employees to exercise reasonable care to discover objects that may be placed on the steps of the coaches, but the carrier is not an insurer that such objects will not be placed or fall thereon. Constant inspection while a train is on a trip is not required, but such inspection only as the employees may reasonably give, consistent with their ordinary duties. Hutchinson on Carriers, § 957; 97 N. E. (Mass.) 624; 64 N.J.L. 702; White on Pers. Injuries, § 681.
J. O. A. Bush, for appellee.
1. The first question, the answer to which would tend to bring out any action or expression on the part of appellee tending to show pain, was asked by appellant's counsel. Testimony subsequently brought out by appellee, of the same character, can not now, even if incompetent, be objected to by appellant. 75 Ark. 251; 86 Ark. 489; 88 Ark. 489.
But this testimony was competent. 55 Ark. 258; 93 Ark. 125; 75 U.S. 397, 19 Law. Ed. 439.
2. Appellee's testimony as to how the accident occurred is not denied, neither is the testimony of Mrs. Alston that she saw a pile of cantaloupe seed on the step of the car disputed. It is patent that the injury occurred in the operation of appellant's train. It is liable per se. Kirby's Dig., § 6773; 63 Ark. 636; 33 Ark. 816; 49 Ark. 535; 57 Ark. 137; 80 Ark. 19; 73 Ark. 548. There is no error in the instructions.
The plaintiff, Mrs. Thomas, claims to have received personal injuries while she was getting off one of defendant's trains, and sues to recover compensation for the injuries. She took passage on the train at Tokio and went to McCaskill, which was the station nearest to her home, and after the train came to a stop, while she was getting off, her foot slipped, and she fell against the step, injuring her back. The jury awarded damages in the sum of $ 500.
She testified that after the train came to a stop she walked out on the platform and down the steps and that as she went to step on the box which had been set on the ground by the porter or brakeman in a slanting position her foot slipped from the step of the car and that the box, proving to be an insecure or unstable footing, she fell against the steps and injured her back.
Another witness, who was present and saw her get off, said that there was a bunch of cantaloupe seed on one of the steps and that Mrs. Thomas slipped and fell.
The defendant made no serious contention that the plaintiff did not slip and, perhaps, receive some slight injury; but it denied the charge of negligence, and also denied that the plaintiff received any substantial injuries. Most of the proof was directed to the last mentioned question concerning the extent of the injuries. There is an assignment of error in the admission of testimony directed to that issue. It is contended that the court erred in permitting a witness to testify concerning complaints made by the plaintiff two weeks after the alleged injury.
The law is settled, we think, by the authorities cited on the respective briefs of the parties that involuntary exclamations indicating pain are admissible, whether uttered at the time the injury occurs or afterward. They are in the nature of verbal acts which go to the jury for what they are worth. On the other hand, it is equally well settled that statements of the injured party merely by way of narrative are purely hearsay, and come within the rule against the admissibility of self-serving declarations.
When the testimony of the witness is examined as a whole, it is clear, we think, that she testified to the plaintiff's "complainings" merely as involuntary exclamations of pain and, as such, they were competent to be considered by the jury in determining the extent of plaintiff's suffering.
Another assignment relates to an instruction given by the court, as follows:
"You are instructed that in the operation and management of its trains the defendant owes its passengers the highest degree of care which a prudent and cautious man would exercise reasonably consistent with its mode of conveyance and the practical operation of its trains."
It is contended that ordinary care is the requirement with respect to a passenger getting on or off a train....
To continue reading
Request your trial
-
Biddle v. Riley
... ... Appellants and the St. Louis & San Francisco Railroad Company ... were sued jointly, and both were served with ... Prescott & Northwestern Ry. Co. v. Thomas, ... 114 Ark. 56, 167 ... ...
-
Fanelli v. Illinois Cent. R. Co.
...slippery. But it would not be too much to ask that the words she used be given an ordinary dictionary meaning. In Prescott & N. W. R. Co. v. Thomas, 114 Ark. 56, 167 S.W. 486, the alleged negligence was the leaving of cantaloupe seeds on one of the steps of the train, and this was held suff......
-
Payne v. Thurston
... ... company operating the train. 73 Ark. 548-53; 131 Id ... known, to it. 128 Ark. 479; 73 Id. 548. A railroad ... must take notice of all things it should have taken ... Ry. Co. v ... Cross, 78 Ark. 220, 93 S.W. 981; Prescott & North Ark. Ry. Co. v. Thomas, 114 Ark. 56, 167 ... S.W ... ...
-
State ex. rel. Moose v. Frank
... ... [169 S.W. 335] ... that railroad for a violation of the anti-trust act of 1905 ... for ... of manufacturing was under construction, a laundry company ... claimed the exemption of that act. It was held that ... ...