Simmons v. Lusk

• Decision Date: 02 April 1917
• Docket Number: 281
• Citation: 194 S.W. 11,128 Ark. 336
• Parties: SIMMONS v. LUSK et al., RECEIVERS OF ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY
• Court: Arkansas Supreme Court

194 S.W. 11

128 Ark. 336

SIMMONS v. LUSK et al., RECEIVERS OF ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY

No. 281

Supreme Court of Arkansas

April 2, 1917

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; reversed.

Judgment reversed and cause remanded.

Oglesby Cravens & Oglesby, for appellant.

1. The testimony established that plaintiff was put upon and entered a train which did not stop at her destination on account of the negligence of the employees and on account of this negligence she suffered the injuries complained.

The instructions given for plaintiff were correct, but rendered worthless by defendant's instruction No. 7. 45 Ark. 256; 47 Id. 74; 78 Mo. 610; 52 Ark. 406. It was unsound abstract and contradictory to the correct instructions given and confused the jury.

W. F Evans of Missouri and B. R. Davidson, for appellees.

1. The bill of exceptions does not set out all the evidence. 42 Ark. 29-35; 74 Id. 551-3; 54 Id. 162; 44 Id. 74; 94 Id. 115; 81 Id. 327; 91 Id. 443.

2. It was plaintiff's duty to ascertain whether the train stopped at her destination before she entered it. 45 Ark. 256; 47 Id. 74; 57 F. 481; 99 Ark. 248; 40 Id. 298; 45 Id. 256. There was no duty on behalf of the conductor to stop and no negligence. 45 Ark. 256-263; 47 Id. 74; 99 Id. 248; 57 F. 481. The instructions state the law correctly.

STATEMENT BY THE COURT.

Mrs. Frank Simmons sued the receivers of the St. Louis & San Francisco Railway Company to recover damages for refusing to stop one of its passenger trains, on which she was a passenger, at Mountainburg, Arkansas.

The complaint alleged a state of facts substantially as follows: On the 15th day of October, 1916, plaintiff purchased a ticket at Wichita, Kansas, over defendant's road to Mountainburg, Arkansas. She arrived early in the morning at Monett, Missouri, a station on defendant's line of road, where she changed cars. One of defendant's south-bound passenger trains was waiting there, and under the rules of the railway company it had porters or other employees at the entrance of the train to inspect the tickets of passengers and see if their tickets called for passage on that train. The plaintiff exhibited her ticket to Mountainburg, Arkansas, to the member of the train crew stationed at the entrance of the train. He examined her ticket and permitted her to enter the train without telling her that it did not stop at Mountainburg, although he knew by its schedule that it did not stop there. The fact that the train did not stop at Mountainburg was not known to the plaintiff and she relied upon the fact that she had exhibited her ticket to a member of the train crew whose duty it was to inspect it and he permitted her to take passage on the train. After the train had gone a considerable distance the conductor took up her ticket and informed her that the train would not stop at Mountainburg. He refused to stop the train at Mountainburg and compelled her to leave the train at Winslow with her two small children and hand baggage. She had to go out in the weather with her children and climb up the mountain to reach a place where she could stay until she could get to Mountainburg. She was a stranger in the place and by reason of the excitement and worry caused by being compelled to leave the train she became seriously ill, and suffered a miscarriage.

The answer of the defendant denied the allegations of the complaint. The plaintiff introduced testimony to establish the several allegations of her complaint. The defendant introduced testimony to disprove each and every allegation of plaintiff's complaint.

The jury returned a verdict for the defendant and from the judgment rendered the plaintiff has appealed.

OPINION

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

Counsel for the defendants seek to uphold the judgment by invoking the rule that where the bill of exceptions does not affirmatively show that it contains all the evidence and there is no language from which it is naturally and necessarily inferred that it contains all the evidence, the rulings of the court upon the evidence and instructions are presumed to be correct. Bowden v. Spellman, 59 Ark. 251, 27 S.W. 602. In that case the bill of exceptions began as follows:

"Be it remembered that, on the trial of this cause, evidence was introduced tending to show the following state of facts." The court held that the statement was not conclusive that there were not other facts shown on the trial which if brought before this court would sustain the rulings and judgment of the lower court. In other words, the court held that the bill of exceptions in that case only showed by implication that there were no other facts shown. Here the bill of exceptions is essentially different. We quote from the bill of exceptions as follows:

"On the trial of the above cause at the June, 1916, term of the above styled court, the following proceedings were had:

"The plaintiff introduced testimony to establish the several allegations of her complaint.

"The defendants introduced testimony to disprove each and every allegation of plaintiff's complaint.

"On the trial of the cause, the court gave the following instructions on behalf of the plaintiff."

This is not as definite and certain as a bill of exceptions ought to be where a reversal is sought for a failure of proof. It is true that the bill of exceptions does not follow the proper practice by expressly stating that it contains all the evidence introduced, but it does appear with reasonable certainty that no other evidence was introduced. It states that the plaintiff introduced testimony to establish the several allegations of the complaint. That the defendant introduced testimony to disprove each and every allegation of the plaintiff's complaint. Then follows the instructions given by the court. From this the natural inference would be drawn that no other testimony was introduced than that referred to, and we think the bill of exceptions was sufficient to present the errors for which a reversal of the judgment is sought. Overman v. State, 49 Ark. 364, 5 S.W. 588; Hibbard v. Kirby, 38 Ark. 102; Leggett v. Grimmett, 36 Ark. 496; Walker v. Noll, 92 Ark. 148, 122 S.W. 488.

It is next contended that the court erred in giving instruction No. 7, which is as follows:

"If you find from the evidence that the plaintiff was...