Railway v. Barger
| Decision Date | 05 October 1889 |
| Citation | 12 S.W. 156,52 Ark. 78 |
| Parties | RAILWAY v. BARGER |
| Court | Arkansas Supreme Court |
APPEAL from Washington Circuit Court, J. M. PITTMAN, Judge.
This action was brought against the defendant company to recover damages for an injury sustained by the plaintiff in falling through a hole in the defendant's depot platform. The complaint alleged that the injury was received while the plaintiff was lawfully engaged in removing some freight from the depot, and that the defendant had negligently suffered the platform to become unsafe and had failed to repair it. The answer denied the negligence imputed to the defendant denied that the plaintiff was injured in the manner stated in the complaint, or otherwise, and alleged that any injury received by the plaintiff was the direct result of his own negligence.
The evidence showed that the plaintiff was assisting the owner of a box of freight, to carry it out of the defendant's freight room and across the platform for the purpose of placing it in a wagon which had been backed up to the platform to receive it. The box was heavy and had to be carried out of the door lengthwise. In carrying one end of it the plaintiff walked backwards, and in doing so, fell through a hole in the platform, the box falling on him. The depot agent, Frost, was also assisting to carry the box, and after the plaintiff had fallen and got up, Frost said "that hole ought to have been fixed." The hole through which the plaintiff fell was one foot wide and about one and a half or two feet long. It was near the outside of the platform and was made by the breaking off of a board. One of the witnesses testified that it did not "look fresh like it had been done that day," and that the board "looked as if some heavy piece of machinery had broken it." The declaration of the agent, Frost, was given in evidence on the part of the plaintiff, and was objected to by the defendant. The objection was overruled and the court instructed the jury that if the station agent in charge of the depot and platform, knew of a defect in the platform, that was equivalent to knowledge by the defendant. The Verdict and judgment were for the plaintiff, and the defendant appealed.
Judgment reversed and cause remanded.
John O'Day, E. D. Kenna and B. R. Davidson, for appellant.
It was error to admit the declarations of the agent, Frost. They were incompetent. Story on Ag., sec. 136; 74 Mo. 553; 19 A. & E. Ry. cases, 408; 57 Ill. 265; 60 id., 534; 1 Gr. Ev., 14th Ed., sec. 113; 72 N.Y. 542; 68 N.C. 107; Thompson Car. Pass. pp. 557-8; 9 Kan. 631; 20 Wall., 528, and many other cases. It was not sufficient to prove that there was a hole in the platform. The proof should have shown that the defendant knew, or should have known in the exercise of due care, of its existence. Ry. v. Fairbain, 48 Ark.; 30 A. & E Ry. Cases, 166; ib., 163; 86 Pa. 74.
L. Gregg, for appellee.
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