Rodgers v. Choctaw, O. & G. R. Co.

• Decision Date: 07 October 1905
• Citation: 89 S.W. 468
• Parties: RODGERS v. CHOCTAW, O. & G. R. CO.
• Court: Arkansas Supreme Court

89 S.W. 468

RODGERS v. CHOCTAW, O. & G. R. CO.

Supreme Court of Arkansas.

October 7, 1905.

Appeal from Circuit Court, Monroe County; George M. Chapline, Judge.

Action by J. D. Rodgers against the Choctaw, Oklahoma & Gulf Railroad Company. Judgment for defendant. Plaintiff appeals. Reversed.

Appellant, J. D. Rodgers, sued the Choctaw, Oklahoma & Gulf Railroad Company to recover damages for injuries caused by negligent operation of its train while he was a passenger thereon. A trial was had before a jury, appellant testified in his own behalf, and rested his case, whereupon the court instructed the jury to return a verdict in favor of the defendant, which was done.

C. F. Greenlee, for appellant. E. B. Peirce and T. S. Buzbee, for appellee.

McCULLOCH, J.

The only question before us for determination is whether the evidence introduced by the plaintiff was legally sufficient to support a verdict in his favor, and in testing that question we must give the testimony its strongest probative force, and accept that view of the facts which it will warrant most favorable to plaintiff's cause of action. Catlett v. Railway, 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254; Ford v. St. L., I. M. & Sou. Ry. Co., 66 Ark. 363, 66 S. W. 864; Burns v. St. L. & S. W. Ry. Co. (Ark.) 88 S. W. 824.

Appellant lived at Brinkley, a station on defendant's railroad, but was engaged in business at a switch known as the "G. & C. Siding," 6½ miles west of Brinkley, on defendant's road. Passenger trains did not stop at this switch, and appellant was accustomed to ride out there two or three times a week on freight trains which stopped there. On the occasion in question he boarded a freight train at Brinkley to go to the switch, and also shipped a lot of merchandise to be put off there. En route he became sick, and his bowels wanted to move; the call being too urgent to await the arrival at his destination. The caboose was not provided with a closet, and he asked the conductor to slow the train down so that he could get off, attend to the call of nature, and walk the remainder of the distance to the switch. The conductor declined to do that. Shortly afterwards the train reached the switch, and was brought to a stop, but the caboose was stopped over a trestle 85 feet long and 20 feet above the surface of the ground. Appellant testified that he did not know that the caboose was over the trestle, and walked out on the rear step, expecting to get off; that as he walked out on the step he met the conductor going into the caboose, and the latter said to him, "You are in a hurry?" to which appellant replied, "Yes, I am;" that a brakeman on the front platform of the caboose called to him, saying, "Just squat on the steps." Appellant describes the incident as follows: "This man I was speaking about [the brakeman] said, `Just squat down there,' and I said, `I can't get off on the dump, for they have stopped over a trestle,' and he said, `squat on the steps,' and I loosed my pants and had the rail by my left hand, and the train gave a jerk, and I fell to the trestle, and from there to the ground, and that's all there is to it." He testified also to material injury resulting from the fall. His collar bone and one rib were broken, and his arm was severely hurt.

Appellant contends that the railroad company was guilty of negligence in failing to provide a closet for the use of passengers, and that he should recover damages on that account. Freight trains are not equipped for the carriage of passengers, and public carriers are not required to equip them for that purpose. Railway v. Canman, 52 Ark. 517, 13 S. W. 280; Krumm v. St. L., I. M. & Sou. Ry. Co., 71 Ark. 590, 76 S. W. 1075; Chicago & A. Ry. v. Arnol, 144 Ill. 261, 33 N. E. 204, 19 L. R. A. 313. "A passenger riding in a freight train or a mixed train must be deemed to assume all the inconveniences and risks usually and reasonably incident to transportation or travel on such trains, and is not entitled to insist upon having the same care and attention that he might justly demand upon a regular passenger train." 4 Elliott on Railroads, § 1629. Hutchinson on Carriers, p. 616; 1 Fetter on Carriers of Passengers, pp. 33, 34; Olds v. New York, etc., Ry. Co., 172 Mass. 73, 51 N. E. 450. But where the railroad company undertakes the carriage of passengers on freight trains, it owes such...