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

• Decision Date: 03 March 1900
• Citation: 55 S.W. 941
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. BAKER.
• Court: Arkansas Supreme Court

55 S.W. 941

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

Supreme Court of Arkansas.

March 3, 1900.

Appeal from circuit court. Woodruff county; Hance N. Hutton, Judge.

Action by Bettie M. Baker against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals. Affirmed.

This is a suit for damages for personal injury. The injury complained of was caused by a fall while plaintiff was alighting from appellant's train at Baldknob. The complaint, after setting out the relationship of passenger and carrier, and the occasion and circumstances of the injury, in detail, charged "that said fall and injuries were caused by the defendant carelessly and negligently failing to render her necessary assistance in getting off the car." The answer admitted that the relation of carrier and passenger existed, but in other respects denied the material allegations of the complaint, and set up affirmatively "that whatever injuries plaintiff may have received in attempting to alight from the train * * * were occasioned by her own fault and carelessness in attempting to alight at the time and in the manner in which she did, and without waiting to be assisted off by any of the train crew." Mrs. Baker, the plaintiff, in her own behalf testified that she did not know she had to change at Baldknob until the conductor passed through and took up the tickets, just before reaching Baldknob. She then told him of her feebleness, and wished his help in getting off at Kensett, as she had been used to going that way, and not getting off at Baldknob. The only answer which the conductor made, — "he just waved his hand at me, and passed on down the aisle." When the porter came along, she asked him to assist her in making the change. He agreed to do so, and told her to keep her seat, and he would come back and help her off. This, she said, he never did. She got off the car in front of the ticket office. Says she waited for the porter until the conductor came to the door and said for everybody to get off the train. Describing her getting off, she says that she went in front of another lady passenger, and that "some passengers were already off of the train, and some were still behind us." There were persons between her and the conductor, who was in sight, but she "never got right at him." He was out on the ground. "I could see him. I knew him by his uniform." She did not know how far it was to the ground. There was a great deal of noise from a train which was switching. There were a great many refugees on the train on their way home, — "a very rude and noisy crowd," and making a great deal of noise. She pressed forward until she got to the bottom step. "I was on the bottom step, and couldn't get back. There were people behind me, and I had to get down." Says she could not make anybody hear her when she called for some one to assist her in getting off. "and I had to try to get down alone, of course." She then describes how she got down, with her valise in one hand, and holding to the hand rail with the other. Stepped off with her right foot, "and lost my balance, and whirled around and hit my head on some projection of the car." Did not know whether she fell, or lit on her feet. Was stunned, and "couldn't remember for a little while." The conductor did not think it was anything serious, but said he would come and put her on the train for Kensett, which he did. After reaching Kensett, on her way to her home, she stopped at her family physician's, and had him attend to her wound. It was about three months before it healed entirely. Claims that it is not entirely well yet. Cannot bear anything to touch it. Her health had not been good before that, but nothing the matter with her head until after this injury. Suffered in her head all the time for three weeks, and still has spells of suffering. "For several weeks I never slept any without using chloral. Q. Have you ceased using chloral? A. No, sir. Q. Under whose direction? A. Under Dr. Tabscott's." Her worse spells of headache occur once or twice a week. Does not sleep well, nor eat much. Her eyes are also affected. Has feelings of fainting, etc. Becomes nervous and cannot sleep. She was 58 years old last February. Usual weight is 104 to 110. Suffered with dyspepsia, and sometimes would be better and have more flesh. In repeating what occurred between her and the brakeman, she again says: "He told me to wait when they stopped until he came back. He told me to keep my seat until he came back and helped me off." Dr. Dale testified, in part: "I am confident — I am sure — that the bone has suffered an injury. As to the extent, it would be difficult to say at this late day. From an examination of the wound, I am confident that the bone suffered at the time; and it would necessarily leave pain, and it would take time for it to be entirely relieved. It may be that the lady would be a sufferer as long as she lives, because of the external bone being driven into the cavity." E. R. Brownell testified. Was conductor of the train. Had 14 years of such experience. Took up plaintiff's ticket shortly after leaving Fairoaks. Witness told her she would have to change at Baldknob. She said she would need help in making the change. Witness replied: "All right. We will assist you in changing cars." Plaintiff afterwards called witness' attention to the same subject, and witness again assured her that she should have all necessary assistance. "I told her to keep her seat when we arrived at Baldknob, and we would assist her." The reason the train had to stop at Baldknob and transfer its passengers to the train on main line was on account of Little Rock having quarantined against Corinth and Memphis. Witness then gives in detail the manner of backing down and pulling into Baldknob. They had to couple the sleeper which they had brought from Memphis onto the sleeper of main-line train. Witness had to give signals. His brakeman and the one belonging to the other train made the couplings. When this was done, witness went to the coaches of his train to transfer his passengers. He got on the coach where he expected to find plaintiff. "I went in there to find Mrs. Baker and help her out of the train, but I guess she had already gotten out. I didn't find her. I walked right out again, and stood helping the other passengers out." He did not give any order about getting out, for they were getting out when he reached the coach. He had 25 or 30 passengers in that coach. Witness was assisting some one off the car, when some one remarked that a lady had been injured. C. R. Whittemore testified. The first time his attention was called to plaintiff was shortly after they left Fairoaks. She asked him if the train went through to Kensett. Witness told her that it did not, but that she would have to change at Baldknob. She said she would need assistance in making the change. "I told her, if she would keep her seat until I got through with the work I had to do for a few minutes, after I got through I would come back and assist her in changing cars." Witness then explains that the work he had to do was to couple on to the main-line sleeper. As soon as he did this, he came forward to assist passengers off. Witness says that the same promise of assistance was made by him twice. The other time was somewhere between Fairoaks and Augusta. "She said that she needed assistance, and I told her, if she would keep her seat until I got back, that I would help her off." Again he says: "I got off after we coupled up, and came on up to see after the lady. I had promised to help her off, and I went through the rear end of the car and saw that she had got out, and I came around the other way, and the crowd was coming out, and I didn't see her any more." The train stopped at Baldknob about 30 minutes, so that there was nothing to cause the passengers to be in any hurry. Witness says there was plenty of light from the two principal ones, as well as those from the ticket and telegraph offices. They all threw light on the platform. Had 14 years' experience on the road. Witness on cross-examination again explains what...