Railway Co. v. Lawton

• Decision Date: 06 February 1892
• Citation: 18 S.W. 543,55 Ark. 428
• Parties: RAILWAY COMPANY v. LAWTON
• Court: Arkansas Supreme Court

18 S.W. 543

55 Ark. 428

RAILWAY COMPANY v. LAWTON

Supreme Court of Arkansas

February 6, 1892

APPEAL from Pope Circuit Court. JORDAN E. CRAVENS, Judge.

Action by L. P. Lawton against the Little Rock & Fort Smith Railway Company, a leased line of the Missouri Pacific Railway Company. The case is sufficiently stated in the opinion.

Judgment reversed and cause remanded.

Dodge & Johnson for appellant.

1. Plaintiff was not a passenger, and the defendant owed him no other duty than that of ordinary care, after having knowledge that he came aboard to assist a passenger with the intention of getting off at the same station. 72 Mass. 70; 59 Mo. 34. Knowledge on the part of the officer in charge of the train that plaintiff was on the train for the purpose of assisting a passenger is absolutely necessary to place defendant under any duty to such a person. 66 N.Y. 246; 59 Md. 187; 10 S.E 499; 84 Ga. 1. When strangers resort to the cars for their own convenience, or for business in no way connected with the carrier, they are without legal right, and can only hold the carrier responsible for wanton or wilful injury. Thomps Car. Pass., pp. 104-5; 71 Ill. 500; 59 Pa. 129; 36 Ark. 50; ib., 376; 41 id., 549; 46 id., 535; 101 Pa. 258; 29 Ohio St 367.

Under the rule in the above cases, the company owed plaintiff no duty other than the negative one not to injure him wilfully or intentionally.

2. Plaintiff was guilty of contributory negligence, by his own confession. Defendant was free from any negligence whatever, by reason of having exercised reasonable and ordinary care, even without knowing that plaintiff did not intend to become a passenger. 51 Ark. 477; 45 Ark. 26.

3. Persons frequenting station houses and cars of a carrier are required to obey all reasonable rules and regulations established by the carrier for their own protection and safety, and a failure to do so is contributory negligence. The carrier has a right to keep all persons off its cars who are not there for the purpose of taking passage or transacting business with the company. It was at least plaintiff's duty to notify the employees in order that they might take proper steps to avoid injuring him. 31 Ark. 31; 8 S.E. 529; 9 A. & E., 302.

4. Instruction No. 1 was misleading, in that it assumes that the conductor knew that plaintiff boarded the train to assist a passenger, and so knowing gave permission to enter the car. Custom cannot abrogate a regulation of the company, and instruction No. 2 was erroneous. 6 Ind. 533; 47 Mich. 569; 11 N.W. 153; 54 Wis. 234; 104 Ind. 13; 3 N.E. 611; 20 N.E. 776. It also assumed that the train failed to stop the usual and necessary length of time to allow passengers to get on and off. Instruction 3 gave plaintiff all the rights of a passenger and was erroneous. There was no evidence to support the fourth.

5. Testimony as to the custom at Altus and other points as to hotel men assisting passengers on and off the train was incompetent. 49 Ark. 359; 45 Ark. 26.

A. S. McKennon for appellee.

1. It is not error to refuse instructions, if the court correctly gives the law upon all points arising in the case. 28 Ark. 8; 24 id., 264; 34 id., 649.

2. The instructions asked by defendant were properly refused; citing 36 Ark. 117; 31 id., 666; 45 id., 251; 49 id., 263; ib., 189. Appellee was not a trespasser. If Mrs. Sadler needed assistance to board the train, and appellant's servants failed to render it, then it was appellee's duty and right to do so. 13 Am. & E. R. Cases, 29. On account of custom he was not a trespasser. 40 Ark. 321; 46 id, 189.

OPINION

HEMINGWAY, J.

This was an action to recover damages for personal injuries sustained by the plaintiff while leaving the defendant's car, into which he had gone to escort a woman and child and assist them with their hand-baggage to a seat.

The matters charged in the complaint to cast liability upon the defendant are as follows: First, that the defendant did not stop its train the usual length of time or a reasonable time for persons to get on and off, and by reason thereof the plaintiff fell from the step and was injured while attempting to leave the car; and, second, that while he was engaged in leaving the car the train started with a sudden jerk and defendant's porter gave him "a violent thrust" with his elbow, by reason whereof he was violently thrown to the platform of the depot and badly hurt.

The questions arising upon the latter ground had better be disposed of at the outset, for as to them we find little difficulty in reaching a conclusion. According to the evidence, including that of the plaintiff himself, the sudden jerk, if there were any, occurred while he was in the car, and caused him no injury; it certainly had no connection with the hurt he received in being subsequently thrown from the steps of the car. The porter's thrust was given as he stepped upon the car to resume his trip, and it is not alleged in the complaint nor shown by the evidence that it was due to his careless or wilful neglect. It appears that he acted as porters usually do in getting upon a train that is starting upon its course; and, as it was his duty to get aboard, and there is no evidence that he did it in an improper manner, it discloses no negligence. The instructions which based a right of recovery upon this ground were improper, and should not have been given.

A more difficult question arises upon the other ground of alleged negligence--one not settled by any decision of this court. The defendant insists that, inasmuch as the plaintiff did not enter the car to take passage upon it, but only as escort to a passenger, the defendant owed him no duty except not to injure him wilfully or wantonly; while the plaintiff contends that, as he went upon the car with the knowledge of the trainmen and for the purpose of rendering necessary assistance to a female passenger and little child, the defendant owed him the same duties as a passenger. The learned counsel who has presented the cause for the plaintiff cites us to no authority in support of his contention, and it impresses us as unsound; the cases relied upon by the defendant do not, as we think, bear out his position, but show that it is untenable. Lucas v. New Bedford R. Co., 6 Gray 64; Doss v. Mo. etc., R. Co., 59 Mo. 27; Coleman v. Ga. R. Co., 84 Ga. 1, 10 S.E. 498. We have concluded that neither view is correct, but that reason commends as proper a rule between the two.

In the case of the Louisville & Nashville R. Co. v. Crunk, 119 Ind. 542, 21 N.E. 31, the Supreme Court of Indiana held that a railroad company owed the same duty to those assisting a passenger upon a train as to the passenger himself; but it cites no precedent for the ruling, and it is opposed to all cases adjudged upon the subject to which our attention has been called. The law exacts from railroads for the protection of passengers the highest degree of care, and imposes a liability for all injuries which sound judgment, skill and the most vigilant oversight could have prevented; but this responsibility grows out of the relation or contract of carrier and passenger on account of the great perils of the undertaking. As this is the cause and origin of the rule, it would seem that the rule should be restricted in its application to persons who come within that relation, and such is the effect of the authorities. Lucas v. New Bedford R. Co., 6 Gray, supra; Doss v. Mo. etc., R. Co., 59 Mo. 27, supra; Coleman v. Ga. R. Co., 84 Ga. 1, supra; Griswold v. Chicago, etc., R. Co., 64 Wis. 652, 26 N.W. 101; Thompson on Car. Pas., p. 49, sec. 7.

But a denial that the extreme responsibility contended for exists is not an affirmance of the rule that responsibility is restricted to wrongs that are wilful or wanton. Such conclusion would rest upon the premise that one attending a passenger enters the car from curiosity or upon his own business under a mere license from the company, and not upon business connected with the company upon an implied invitation. If this premise be false and the converse correct, then, according to the decisions of this and other courts, the carrier would be bound to the exercise of ordinary care (St. L., I. M. & S. Ry. v. Fairbairn, 48 Ark. 491; Holmes v. N. E. R. Co., L. R., 4 Exch. 254); and that it is so bound in cases like this is held in the cases first cited, as well as in others upon the subject. Gillis v. Penn. R. Co, 8 Am. L. Reg. (N. S.) 729; S. C. 59 Pa. 129; Griswold v. Chicago, etc. R. Co., 26 N.W. 101, supra. ^[*] In our opinion the rule is correct upon principle. For it is a matter of common knowledge that, in the usual conduct of the passenger business, it often becomes necessary for those not passengers to go upon the cars to assist incoming as well as outgoing passengers, and that a practice has grown up in response to this necessity. While it perhaps arose out of a consideration for the security and convenience of the traveler, it has proven beneficial to carriers, and now prevails in this State and extensively elsewhere, and is treated as an incident to the business in the conduct of the public and the acquiescence of carriers. It cannot be doubted that it has increased travel and the earnings of carriers, while it has promoted the convenience and security of passengers; and if it should be abrogated, many persons would be compelled to forego journeys, to the detriment of the carrier and their own inconvenience. We conclude that such attendant performs a service in the common interest of carrier and passenger, and that his entry upon a car is upon an implied invitation which entitles him to demand ordinary care of the carrier.

But although we think the attendant is entitled to demand ordinary care for his protection, and would be entitled...