St. Louis, I. M. & S. Ry. Co. v. Gilbreath
| Decision Date | 26 October 1908 |
| Citation | 113 S.W. 200 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. GILBREATH. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Franklin County; Jeptha H. Evans, Judge.
Action by L. P. Gilbreath against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Lovick P. Miles, for appellant. Sam R. Chew, for appellee.
Appellee boarded, at Ozark, Ark., the caboose of a local freight train, which carried passengers, for the purpose of taking passage to Altus, the next station on appellant's road. When he entered the caboose it was standing at the station, but was soon pulled down to the east end of the yards and uncoupled from the train while switching was being done. A car was backed or kicked in on the track where the caboose was standing, and struck it with such force that appellee was thrown down and received serious injuries to his person, for which he sues to recover damages. He testified that when he entered the caboose he sat down on one of the stationary seats running lengthwise of the car, and remained seated until the violent impact of the cars threw him off the seat to the floor. It threw him a distance of six or eight feet, and severely bruised his head, shoulder, and hip on the left side of his body. He testified, also, that the cars came together with great and unusual force.
Appellant proved that a printed notice was posted in the caboose warning passengers of the danger of standing up while switching was being done. The conductor and one of the brakemen testified that appellant stated to the former, immediately after the accident, that he was standing up in the caboose when the shock came, and he was thrown down. He denied having made this statement. The evidence tends to establish the fact that the conductor knew that appellee had entered the caboose as a passenger, and was in there when the other car was backed or kicked against it with extraordinary violence. But whether he actually knew of appellee's presence or not, he was operating a train which carried passengers, the caboose had just been drawn up to a station for the purpose of receiving passengers, and he, as well as all of the other trainmen, were bound to anticipate the presence of passengers aboard the caboose, and to exercise care not to injure them. St. Louis, Iron Mountain & South. Ry. Co. v. Harmon, 85 Ark. 503, 109 S. W. 295.
The court refused to instruct the jury, at appellant...
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