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

• Decision Date: 10 January 1916
• Docket Number: (No. 108.)
• Citation: 181 S.W. 135
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BOSTIC.
• Court: Arkansas Supreme Court

181 S.W. 135

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

(No. 108.)

Supreme Court of Arkansas.

January 10, 1916.

Dissenting opinion.

For majority opinion, see 180 S. W. 988.

McCULLOCH, C. J.

Plaintiff was injured while he was alighting from the train at his destination, and the first part of instruction No. 2 was correct in stating that that state of facts constitutes a prima facie case of negligence on the part of the defendant. K. C. Sou. Ry. Co. v. Davis, 83 Ark. 217, 103 S. W. 603. The fact that the act of the trainman in pushing the plaintiff from the train contained the element of willfulness does not lessen the force of the presumption against the company or prevent its operation. The case of the plaintiff was therefore made out when he proved that he was injured while alighting from the train, and it then devolved on the defendant to exculpate itself from the charge of negligence.

Instruction No. 2 was technically incorrect in saying that when the prima facie case of negligence is established the verdict should be for the plaintiff, unless the plaintiff himself was guilty of contributory negligence. It is true that the instruction cut off the right of the defendant to rebut the presumption of negligence by showing that its servants were not in fact guilty of any negligence which caused the plaintiff's injury; but it seems to me that this inaccuracy in the instruction was harmless, in view of the issues in the case. There was a sharp conflict between the testimony adduced by the plaintiff and that adduced by the defendant. On one side the testimony tended to show that plaintiff's injury occurred wholly on account of the wrongful act of one of the trainmen in first directing the plaintiff to jump from a moving train, and then in pushing him off when he declined to jump. On the other hand, the testimony adduced by the defendant was to the effect that the plaintiff voluntarily jumped from the train. Now, in that state of the testimony, the jury had to find either that one side or the other was free from negligence. There was no middle ground, and the verdict of the jury unnecessarily means that the injury was caused by the wrongful act of the trainmen, and that the plaintiff was free from fault. In other words, under the language of instruction No. 2, the jury had to acquit the plaintiff of contributory negligence in order to find in his favor, and since their finding was in favor of the plaintiff it is necessarily implied that the fault was...