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

• Decision Date: 19 February 1898
• Citation: 44 S.W. 715
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BEECHER.
• Court: Arkansas Supreme Court

44 S.W. 715

ST. LOUIS, I. M. & S. RY. CO. v. BEECHER.

Supreme Court of Arkansas.

February 19, 1898.

Appeal from circuit court, Lawrence county; Richard H. Powell, Judge.

Action by George Beecher, administrator, against the St. Louis, Iron Mountain & Southern Railway Company, to recover for the death of intestate. From a judgment for plaintiff, defendant appeals. Reversed.

Dodge & Johnson, for appellant. J. M. Moore, J. K. Gibson, and W. B. Smith, for appellee.

BUNN, C. J.

This is a suit for $15,000 damages to the next of kin for the killing of Rebecca Tackwell, plaintiff's intestate. Verdict and judgment for $1,500, and the defendant railway company appealed.

There is evidence to sustain the allegation that the deceased was killed by the negligent running and operation of defendant's train, and there is also evidence of contributory negligence on the part of the deceased which contributed directly to her death. This being true, and there being no question as to the admissibility of testimony offered in evidence, the case turns on the giving and refusing of instructions. The first instruction given by the trial court at the instance of the plaintiff reads as follows, to wit: "You are instructed that the defendant corporation is bound to use, in running and operating its trains on its road, the highest degree of care, diligence, and skill which a prudent and cautious man would exercise, and which is reasonably consistent with its mode of conveyance, and practical operation of its road." This instruction is not hypothetical in form, but seems to be intended as an assertion of an abstract proposition of law; but, even as an abstract proposition, it is erroneous; for, while it is applicable and proper in the case of a passenger, it cannot be made to apply to the case of any other than a passenger, or one sustaining the relation of a passenger to the railway company. It is in close accord with the direction of this court in the case of Railway Co. v. Sweet, 60 Ark. 557, 31 S. W. 571, which was a case involving the killing of a passenger. It is not the law that a railway company, in running and operating its trains, is bound to use the highest degree of care, diligence, and skill, generally; for the railroad company owes no such duty to all the world, but only to a class of people, — a very limited class in point of numbers, — passengers on its trains, or those sustaining such relation to it. One of the principal questions in this case is whether or...