St. Louis, I. M. & S. Ry. Co. v. Purifoy

• Decision Date: 05 June 1911
• Citation: 138 S.W. 631
• Parties: ST. LOUIS, I. M. & S. RY. CO. et al. v. PURIFOY.
• Court: Arkansas Supreme Court

138 S.W. 631

ST. LOUIS, I. M. & S. RY. CO. et al. v. PURIFOY.

Supreme Court of Arkansas.

June 5, 1911.

Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge.

Action by M. W. Purifoy against the St. Louis, Iron Mountain & Southern Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

W. E. Hemingway, E. B. Kinsworthy, Bridges, Wooldridge & Gantt, and J. H. Stevenson, for appellants. M. S. Cobb, for appellee.

WOOD, J.

This is an appeal from a judgment for $2,500, in favor of the appellee, for personal injuries alleged to have been received by him, while a passenger in a Pullman car from St. Louis to Hot Springs, by being thrown by a lurch or jerk of the train, whereby, as he was coming from the toilet room to the smoker and lavatory, he was thrown against the door of the toilet room and his neck injured. He claims to have a tubercular infection of the neck, which has made it necessary to have it lanced or operated upon several times, and that it has seriously impaired his health.

Appellant urges a reversal because the court gave the following prayer for instruction: "(1) The degree of care required by law of a railroad company for the safety of its passengers is the utmost diligence which human skill and foresight can effect, consistent with the mode of conveyance and the practicable operation of its railroads, and if injury occurs by reason of the slightest omission in regard to the highest perfection of all the appliances of transportation or the mode of management at the time the damage occurs, the railroad companies are responsible; and in this case, if you believe from the evidence that plaintiff, while a passenger on defendant's train, and while in the exercise of reasonable care, was injured because of the failure of the defendant to use such care, as above defined, for his safety, then you should find for the plaintiff."

The specific objections made to the giving of the instruction are as follows: "(1) Because of the use of the words `utmost diligence which human skill and foresight can effect,' instead of the `highest degree of care which a prudent and cautious man would exercise.' (2) Because the word `reasonably' is not used just preceding `consistent,' so as to make the degree of diligence required reasonably consistent with the mode of conveyance and operation of the road. (3) Because of the use of the words `slightest omission in regard to the highest perfection of all the appliances of transportation or the mode of management,' instead of `the failure to use the highest degree of care which a prudent and cautious man would exercise, and which is reasonably consistent with the mode of conveyance and the practical operation of the road.'"

"The care exacted of railway companies toward their passengers is the highest degree of care which a prudent and cautious man would exercise, and that which is reasonably consistent with their mode of conveyance and the practical operation of their roads." Railway Co. v. Sweet, 60 Ark. 550, 557, 31 S. W. 571; Railway Co. v. Sweet, 57 Ark. 287, 21 S. W. 587; Railway Co. v. Murray, 55...