Railway Co. v. Cox

• Decision Date: 05 January 1895
• Citation: 29 S.W. 38,60 Ark. 106
• Parties: RAILWAY COMPANY v. COX
• Court: Arkansas Supreme Court

29 S.W. 38

60 Ark. 106

RAILWAY COMPANY v. COX

Supreme Court of Arkansas

January 5, 1895

Appeal from Jackson Circuit Court, JAMES W. BUTLER, Judge.

STATEMENT BY THE COURT.

This is a suit by appellee against appellant company on a claim of damages to the person of plaintiff, in the sum of $ 5,000 and was tried by a jury, and determined in the Jackson circuit court, at its spring term, 1893, resulting in verdict and judgment against appellant in the sum of $ 800, from which it duly appealed to this court.

Abstract of the Evidence.

On the night of the second of June, 1892, at about 8 o'clock the plaintiff arrived at Tuckerman from Swifton (both in said Jackson county), on defendant's passenger train, as a regular passenger thereon, having paid his fare as such. There were three railroad tracks of defendant's road at Tuckerman, which was one of defendant's regular stations. The western one, nearest the depot building, was called the "passing track;" the middle one, the "main track," whereon passenger trains, having the right of way, ran; and the eastern one used for freight trains. The road of defendant was fenced in by a wire fence, on either side, generally along the outer edge of right of way. The fence, on the west side at this point, seems to have extended from each end of the depot building north and south along the right of way. About 30 or 40 yards from the depot building in one direction, a public highway crossed defendant's railroad, and, as is necessarily the case in such instances the fence on either side of defendant's road was drawn in towards and to the same at the side of the public road; and in defendant's road bed, between the two ends of the fence thus drawn in to it, was a stock gap--a pit covered with small square sleepers, with a few inches space between them, and in this instance having one of the corners uppermost, so as to prevent stock from walking over it, and thus intruding upon defendant's road and right of way.

Passengers alighting from defendant's trains, had to go by way of the passway, through or around the depot building, in order to go to the town of Tuckerman, nearby. Whether or not the tracks of the railroad were on a level with the ground at the point where passengers disembarked, and where the plaintiff got off on the occasion referred to, is not stated; and yet we infer as much, for in his complaint and in his testimony he states that the steps of the coach were two or three feet from the ground.

There was a freight train standing on the "passing track" (the one nearest the depot) when the passenger train arrived and stopped opposite the depot, and plaintiff alighted; and the way to the depot house from the passenger coaches was thus obstructed, so that at the time the plaintiff could not reach the depot, without going over or under this standing freight train.

When plaintiff alighted from the train, he met and had some conversation with friends who were getting on the train, and saw there also the conductor or depot man on the ground with a lantern, and probably other train men. All these and plaintiff were in the space between the freight and passenger trains, which was about five or six feet wide. One of plaintiff's witnesses testified: "As I got on the passenger train, the freight train was moving out north there I met plaintiff. He left, and started south between the tracks. That was the only way he could get out unless he waited until the freight train passed by. Plaintiff was from forty to sixty feet from cattle gap when I met him." Plaintiff states that there was no light at the depot, or, if there was one, its rays were obstructed by the standing freight train, so that he did not. have the benefit of it. The testimony is conflicting as to whether it was a moonlight or dark night, plaintiff stating that it was dark, his witnesses not remembering as to this, and the railroad men stating that the moon was shining.

The plaintiff testified that he was well acquainted with the surroundings, and knew of and where the cattle gap was. He states that he was a farmer, and at the time a candidate for clerk of that county, and was actively looking after his canvass; and, on alighting from the train, was anxious to get to the town (Tuckerman), and "be with the boys." And so, after a few words of greeting with his friends, and seeing the freight train standing in the way, he went up the track to the cattle gap to get into the public road, and, in crossing over the gap, his heel caught against one of the corners of the sleepers, and his toe went down between them and he fell and sprained his ankle. With some difficulty he reached the town, by the help of others, called in a surgeon, and suffered a great deal, and was entirely or practically helpless for some time, and claims that he is permanently injured.

Reversed and remanded.

Dodge & Johnson for appellant.

1. The facts in this case establish a clear case of contributory negligence.

2. The facts are entirely different from those in 46 Ark. 182, and plaintiff's first prayer should not have been given. The second and third were not applicable to this case, and were misleading.

3. When a passenger has knowledge of a dangerous place, and the place is not intended for the use of passengers, and the passenger knows it, yet uses such place as a passageway, and is injured, he cannot recover. Wood, Mast. & Ser. sec. 335; 53 Hun, 420; 102 N.Y. 219; 11 Cent. Rep. 206; 137 Pa.St. 352; 39 F. 596; 57 Conn. 422.

4. A passenger's right to recover is precluded when his omission to employ his senses contributes to his injury, if by their employment he might have avoided the injury. 35 O. St. 631; 24 id. 638; 25 Mich. 274; 40 Ark. 322; 58 F. 341.

5. When a railroad company has provided safe and convenient means for passengers to enter and leave trains, etc., the means so provided must be used, and if he uses a way of his own choice in preference, he is responsible for any accident which may happen. 33 Pa.St. 318; 97 Mass. 275; 50 How. Pr. 126; 103 Mass. 570; 6 C. B. (N. S.) 923.

M. M Stuckey for appellee....