Railway Company v. Murray

• Citation: 18 S.W. 50,55 Ark. 248
• Parties: RAILWAY COMPANY v. MURRAY
• Decision Date: 19 December 1891
• Court: Supreme Court of Arkansas

18 S.W. 50

55 Ark. 248

RAILWAY COMPANY v. MURRAY

Supreme Court of Arkansas

December 19, 1891

APPEAL from Washington Circuit Court, JAMES M. PITTMAN, Judge.

STATEMENT BY THE COURT.

Murray sued the St. Louis & San Francisco Railway Company for damages which were occasioned by the negligence of the company in operating its trains.

At the trial evidence was adduced tending to prove the following facts: On the 29th of November, 1887, plaintiff was a passenger on the defendant's train from Delaney to St Paul. One and a half or two miles from St. Paul the train immediately after it passed a curve in the road, stopped and remained standing for a short while. This was in the night. There were two red lights on the rear of the train. Plaintiff was in a coach, it being the last coach in the train except one, which was a caboose. While the train was standing still another train was heard approaching from the rear on the same track. The conductor immediately went down the track about twenty feet and with his lantern signaled to it to stop. About this time a passenger in the coach with plaintiff looked out of the window and saw the locomotive of the approaching train and hallooed out to the passengers "Here comes another train running into us," and said to them that they "had better get out." The plaintiff and other passengers, hearing and seeing the approaching locomotive, immediately and in haste left the train. In getting off plaintiff fell into a ditch and hurt one of his shoulders. The second train proved to be a locomotive and a caboose, and was running about ten miles an hour and stopped within about thirty feet of the passenger train. Two or three witnesses testified that the distance was 60 or 100 feet. For the damages suffered by plaintiff on account of his fall this action was brought.

Evidence tending to prove other facts was adduced, but sufficient has been stated for the purposes of this opinion.

One witness, who was a passenger on the train at the time the plaintiff was, was allowed to testify, over the objection of the defendant, as follows: "I got off the train and I got off to avoid danger. * * * I have been working at business that requires me to ride on railroads much of my time for the last ten years, and from the circumstances I thought it prudent to get off the car." Murray was allowed to testify that a passenger on the same train said as the locomotive and caboose approached: "Here comes another train running into us, and said we had better get out of there." Rivercomb testified that, during the night on which plaintiff was hurt, he assisted him in pulling off his coat, and on the next morning assisted him in putting it on, and that he complained of being hurt in the shoulder. C. M. Levisee testified that he was a brakeman on the second train, and as follows: "If we had had a train of loaded cars of the usual length, we could not have stopped the train so quick. An engine and caboose can be stopped sooner than a train of cars. The ordinary train of cars could not have been stopped in time to have prevented running into the train." To the foregoing testimony of Murray, Rivercomb and Levisee, the defendant objected at the time it was introduced, and saved his exceptions.

The following instructions were given to the jury over the objections of the defendant:

"The burden is upon the plaintiff to show by a preponderance of evidence the truth of the allegations in his complaint.

"The main issues for your consideration are, first, did the plaintiff receive an injury; second, was such injury occasioned or caused by the negligence, carelessness or improper management of the defendant; third, did the plaintiff by his own negligence contribute to the injury. Each of these propositions you are to determine from the evidence.

"If you should find that there was an injury received by the plaintiff, and that the same was caused by the negligence, carelessness or improper management of the defendant, you will find for the plaintiff unless you find also that the plaintiff by his negligence contributed to such injury. In case you should find that the plaintiff's negligence occasioned or contributed to such injury (if any) you will find for the defendant.'

"The mere fact that the plaintiff through fear and apprehension of danger did an act which was the immediate cause of injury to himself is not of itself sufficient to authorize a finding for him; but to authorize such finding you must also find that the defendant was guilty of some act of negligence, carelessness or improper management in running his train in close proximity to plaintiff, which was sufficient to create in the mind of a reasonable and prudent person such fear and apprehension.

"Should you find that the defendant was guilty of negligence, carelessness or improper management, and that an injury to the plaintiff was occasioned thereby, you will consider then whether the plaintiff was himself guilty of contributory negligence.

"If you should find from the evidence that, by the negligence of the defendant, the plaintiff was put in a position of great peril, and in attempting to escape that peril he did an act also dangerous, from which an injury resulted to him, such act would not necessarily be an act of contributory negligence, such as would prevent him from a recovery for such injury.

"The test of contributory negligence under such circumstances is, was his attempt an unreasonable, precipitate or rash act, or was it an act which a person of ordinary prudence might do under the like existing circumstances; and it is not to be determined by the result of the attempt to escape, nor by the result that would have followed had the attempt not been made.

"If you should find from the evidence that the plaintiff was carelessly, negligently or improperly placed by the defendant in a position of danger, while in the car of the defendant, by reason of the defendant running a locomotive and caboose in close proximity to the car in which the plaintiff was (if he was in such car), then the plaintiff would have the right to judge of the danger in remaining in such car, as also the danger in attempting to escape, from the circumstances as they appeared to him, and not by the result. And if he, in making such an attempt to escape, used such care as a prudent man under such circumstances should have used, and in doing so received an injury, he should recover."

A verdict for $ 1000 was returned in favor of plaintiff against the defendant; judgment was rendered accordingly; and a motion for a new trial having been filed and overruled, the defendant appealed.

Judgment affirmed.

E. D. Kenna and B. R. Davidson for appellant.

1. It was error to admit the statements of fellow-passengers. Witnesses (except experts) must state facts, and not their conclusions or opinions. 24 Ark. 251.

2. The better rule is that statements of fellow-passengers may not be received as evidence. 81 Ill. 19; 50 Ark. 397.

3. The statements and acts of Murray, Rivercomb and Moore were not admissible as part of the res gestae. 51 Ark. 510; 48 id., 473; 50 id., 397; 9 N.E. 505; 28 A. & E. R. Cas., 467; 7 id., 414; 11 id., 630; 45 N.Y. 574; 38 N.W. 154; 6 S.W. 737; 23 A. & E. Ry. Cases, 438; 11 Allen, 322; 38 Mich. 537.

4. If the train was under full control, and those on it were keeping a proper lookout, and could stop at any time without collision, there could be no cause of action, even though plaintiff became frightened by the acts of the passengers and sight of the approaching train. If one takes fright at the acts of another pursuing a legitimate calling, where there is no danger whatever--where he is not put in peril--and injures himself, he has no cause of action. 26 A. & E. Ry. Cases, 219; 33 id., 533.

5. One guilty of negligence is only liable for the natural and ordinary results of same. 25 A. & E. R. Cases, 451.

6. The verdict is against the overwhelming weight of evidence; contrary to the instructions of the court; and by his own evidence plaintiff was guilty of contributory negligence, and the verdict should be set aside. 14 A. & E. R. Cases, 648; 29 id., 297; 32 id., 109; 19 id., 376.

L. Gregg and J. D. Walker for appellee.

1. The complaint stated a cause of action and the evidence sustained it; the verdict cured any defects of pleading. 2 Ark. 512. This court will not reverse if there is any evidence to support the verdict. 24 Ark. 251; 25 id., 474.

2. The testimony of the witnesses and the statements of appellee tended to show his true condition, and were admissible.

3. The plaintiff, in view of supposed impending peril of his life, only did what a prudent person would ordinarily have done, and under the circumstances of this case was not guilty of contributory negligence. See 49 N.Y. 47; 69 id., 160; 1 Stark., 493; 13 Peters, 181; 3 N.W. 337; 1 Suth. on Dam., p. 63.

4. As to the admission of declarations of injured party to others. See 37 N.W. 409; 1 N.Y.S. 536; 14 P. 237.

OPINION

BATTLE, J., after stating the facts as above reported.

It is contended, on the part of appellant, that, if the train on which appellee was a passenger was standing still upon the track and the engine and caboose approaching it from the rear were under full control of those in charge of them, and the persons in charge were keeping a proper lookout and could have stopped them, at the rate of speed at which they were running, at any time, without collision, the appellee had no cause of action, notwithstanding he was frightened and leaped from the train and injured himself. According to this contention the appellant was not liable for damages to appellee if it was using every precaution to prevent a collision of its trains; and was under no obligations to avoid frightening...