Railway Company v. Johnson

• Decision Date: 05 May 1894
• Citation: 26 S.W. 593,59 Ark. 122
• Parties: RAILWAY COMPANY v. JOHNSON
• Court: Arkansas Supreme Court

26 S.W. 593

59 Ark. 122

RAILWAY COMPANY v. JOHNSON

Supreme Court of Arkansas

May 5, 1894

Appeal from Columbia Circuit Court J. M. BARKER, Special Judge.

Action by Johnson against the St. Louis & Southwestern Railway Company. The facts are stated by the court as follows:

This appeal is from a judgment for $ 1250 recovered by appellee for a personal injury claimed to have been received through the negligence of appellant. Appellant admits the injury denies negligence, and charges appellee with contributory negligence.

The court gave the following instructions at the request of plaintiff:

"1. The jury are instructed, as a matter of law, that a passenger at a station has a right to assume that the railroad company will not expose him to unnecessary danger, but will discharge its duty, which requires it to provide passengers a safe passage to and from its trains; and he is not therefore in all cases liable to the charge of contributory negligence because he attempts to cross an intervening track, made necessary by the running arrangements of said railroad without looking for approaching trains."

"2. Railroads are required to exercise a great deal of care and diligence in taking care of their passengers, and to provide them a safe and convenient means of entrance and departure from their trains, and a failure to do this is evidence of negligence, and they are liable for all damage caused thereby, unless the passenger, by his own misconduct in failing to exercise ordinary prudence, directly contributes to such injury. And, in determining the question as to whether plaintiff, in this case, failed to exercise ordinary prudence, the jury will take into consideration all the facts and circumstances attending the injury, and that plaintiff had a right to presume that defendant had, in the exercise of due care, so regulated its trains that the intervening space which it was necessary for him to go over in order to reach the depot would be free from interruption by passing trains and, from these and all the surrounding circumstances in evidence, determine the same."

"3. If the jury find, from the evidence in this case, that the plaintiff was a passenger on one of the cars of the defendant, and that, on arriving at his destination, the car on which he was riding was stopped on a side track on the opposite side of the main line from the depot, after said station had been called by defendant's employees, and that defendant permitted another of its trains to pass over said main line, at an unusual rate of speed, while plaintiff was passing over said main line, across which it was necessary to go in order to reach the depot, without any provision being made on the part of the defendant to avert danger, and that the plaintiff was damaged by defendant's train on account of said negligence and want of proper care then they will find in favor of the plaintiff such an amount of damages as, in their judgment, based on the evidence, will be sufficient to compensate him for the injuries he has sustained, the pain suffered and the amount he has been compelled to expend on account of such alleged negligence, not exceeding the amount sued for."

"4. The jury are the sole judges of the facts, the weight of evidence and the credibility of witnesses. You should, if possible, reconcile any conflict in the evidence, but, if you cannot do this, then give credence to the witness or witnesses whom you believe most worthy of belief, and, in doing so, you are to take into consideration their interest in the matter, and their manner of testifying. In determining whether or not an act is the proximate cause of an injury, the legal test is, was the injury of such a character as might reasonably, under the circumstances, have been foreseen or expected as the natural result of the act complained of?"

The following instructions were given for the defendant:

"1. If the jury find from the testimony that the plaintiff got on the track in front of and too near the approaching engine for the same to have been possibly stopped in time, that the whistle had been sounded and the bell rung, as is usual under such circumstances, they will find for defendant."

"2. The jury are instructed that while they are the judges of the weight of evidence and the credibility of witnesses, yet they must not discredit any witness arbitrarily, nor are they to discard or depreciate the testimony of a witness merely because he is in the employ of the defendant company."

"3. The jury are instructed that one who is injured in attempting to cross a railroad track, even at a public crossing, ahead of an approaching train, cannot recover, even though the train approached at an unusual speed and without signals, if he either knew of the proximity of the train, or else failed to look and listen for it when he knew it was approaching, and if he had used his senses, he could not have failed both to hear and see it; and, if they find that such, substantially, was the situation and surroundings, and the conduct of the plaintiff on the occasion of his receiving the hurt complained of, they will find for defendants."

"13. If the jury find from the testimony that the plaintiff, a passenger on the train on the side track, alighted therefrom against the warning of the train men, they will find that he ceased to be passenger of his own accord, and cannot claim protection as such."

"14. If the jury find from the testimony that the usual signals were given on the approach of the train, and that plaintiff got on the track too near to stop the train in time to prevent the accident, they will find for the defendant, if they further find from the testimony that plaintiff was in possession of his senses of seeing, hearing and understanding, and by exercise of them could have avoided the injury."

Judgment affirmed.

Bunn & Gaughan and Sam H. West for appellant.

1. "A railroad company is under duty to its passengers not to expose them to unnecessary danger, and not to intentionally or negligently mislead them by causing them to reasonably suppose that their point of destination has been reached, and that they may safely alight, when the train is in an improper place; but the mere announcement of the name of the station is not an invitation to alight. Still, when followed by a full stoppage of the train soon thereafter, it is ordinarily notification that it has arrived at the usual place of landing passengers; and whether the stoppage of the train, after such announcement, and before arriving at the platform, is negligence, depends upon the attending circumstances." 88 Ala. 538. Treating plaintiff as a passenger, he knew of all the surroundings, and attending circumstances, and was not entitled to recover. 31 Mich. 236.

2. The proof shows him guilty of contributory negligence. 95 U.S. 697; 48 Ark. 106; 46 id. 528; 54 id. 25; ib. 431; 37 Am. & Eng. R. R. Cases, 172; 39 id. 463; 50 id. 32; 40 La. An. 800; 34 Ark. 613; 48 id. 106. Having left the train with a full knowledge of the situation, knowing that he was not getting off at the usual place, he took upon himself his own movements, and must suffer the consequences. See also 19 S.W. 432; 49 Am. & Eng. R. R. Cases, 405.

Thornton & Smead for appellee.

It is the duty of railroads to afford passengers a safe means of entrance to and exit from their depot. 48 Ark. 106; 46 id. 196; Beach, Cont. Neg. p. 171; Cooley on Torts, 694; Hutch. Car. sec. 516; Whitt. Smith on Negl. p. 317-18; 2 Redf. Law of Railroads, p. 233; 1 Rorer on Railroads, p. 479; 2 id. p. 1131; 4 A. & E. Enc. Law, p. 908. To permit a train to pass on a track between a depot and another track, on which a passenger train is standing while discharging passengers, just as passengers are passing from the train across the track to the depot, without any provision to avert danger, is actionable negligence. 26 N.J.Eq. 474; 64 N.Y. 635; 11 Hun (N. Y.), 395; see also 11 Minn. 277; 2 McLean, 257; 8 Pa.St. 479; 13 Peters, 192; 51 Ga. 583; 96 Ind. 346. The rule is correctly stated in Thomp. on Car. p. 268, par. 4 and p. 233, par. 18. See, also, as to the difference between a traveler and passenger: 15 Am. Rep. 640; 18 S.W. 5; 54 Ark. 159; Ib. 431; Ray, Neg. Imposed Duties, 121; 11 Minn. 178; 84 N.Y. 240; 60 Md. 449; 100 Mass. 208; 104 id. 108; 105 id. 203; 33 F. 796; 22 S.W. 232. When a station is announced in the night and the train comes to a stop, it is an invitation to alight, on which a passenger may act. Beach, Cont. Neg. p. 172; 38 N. J. Law, 133; 66 N.Y. 642; L. R. 7 C. P. 321. Review the instructions and contend that when construed together they correctly state the law. 50 Ark. 545; 52 id. 45; 48 id. 121; 13 id. 317; 35 id. 594; 46 id. 152.

WOOD, J. BUNN, C. J., disqualified. Manshield, J., not sitting.

OPINION

WOOD, J., (after stating the facts).

Appellee shows that he was a passenger on appellant's train; that, on approaching Waldo, his destination, the name of the station was announced, the whistle sounded, the bell rung, and the train stopped nearly opposite the depot. Appellee supposed the train had stopped to allow passengers to get off; and, accordingly, he, following several other passengers, proceeded to debark. No notice was given that the train had side-tracked to allow a belated train to pass. No warning of danger was given, or injunction to the passengers to remain seated until the other train should pass. Appellee was fifty-four years old. It was between nine and ten o'clock at night, and very dark to him as he came out of the brightly lighted coach. The train from which he debarked was making much noise, the bell ringing, steam escaping, and air brakes making sound. As appellee reached the ground, he looked across to the depot, and started toward the platform. About the time he...