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

• Decision Date: 31 October 1910
• Citation: 131 S.W. 692
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HOLMES.
• Court: Arkansas Supreme Court

131 S.W. 692

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

Supreme Court of Arkansas.

October 31, 1910.

Appeal from Circuit Court, Desha County; Jack Bernhardt, Special Judge.

Action by Webb Holmes against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The appellee, according to the evidence of himself and other witnesses, was in the act of boarding one of appellant's combination freight and passenger trains at Watson station for the purpose of taking passage to Youcapin. Appellee had mounted the steps, and had reached the platform, and was "fixing to go in the door of the coach," when the train made a "bump," "a big bump," "a hard couplin," a "jerk," "considerable of a jerk," an "awful hard jerk," as the witnesses for appellee variously describe it. This bump or jerk threw appellee from the platform to the ground. Appellee had under his arm a package of beef. As he fell, his arm struck the rail, and the train ran over it, crushing the "lower two-thirds of his arm and hand all to pieces," so that it was necessary to amputate same. The train "was standing perfectly still" until appellee reached the platform and "got to where he was going in the door," when it started. Appellee was attended by the surgeon for about 22 days. Appellee had a pint of whisky in his pocket. He did not know how many drinks he had taken the evening before his injury, but he had taken only one drink — a bottle of beer — that morning, and was sober. The above are substantially the facts, as the jury might have found them in favor of appellee. Appellee sought and recovered judgment against appellant in the sum of $2,500. He alleged in his complaint that appellant "carelessly and negligently started its train with a sudden and violent jerk," causing the injury above described. Appellant denied the allegations, and set up that appellee did not become a passenger on its train, "but that he undertook to board the train after it left the station and while it was in motion," and that appellee was thus injured through his own negligence. The testimony of witnesses on behalf of appellant tended to prove that appellant's train stopped at Watson on the day appellee was injured some 10 or 15 minutes for passengers to get off and on; that the train had begun to move, and had gone about 90 feet before appellee attempted to get on same; that appellee waited at a saloon until the train started up, and then he was seen approaching, running to catch the train. "He grabbed the grabiron with his right hand and missed it, and attempted to step up and missed the step and fell in under there," as one of the witnesses testified. There was testimony tending to prove that appellee at the time appeared to be under the influence of liquor. Witnesses on behalf of appellant testified that the train did not start with a jerk, that the train was light, and that it was unnecessary that it should start up with a jerk. The above testimony on behalf of appellant tended to prove that appellant was not negligent, and that appellee was negligent. Other facts stated in opinion.

W. E. Hemingway, E. B. Kinsworthy, and Bridges, Wooldridge & Gantt, for appellant. X. O. Pindall, for appellee.

WOOD, J. (after stating the facts as above).

Witnesses for appellant testified that it was unnecessary in the proper operation of the train to start same with a jerk. Then, if the train did start with a jerk, as the witnesses for appellee testified, this was evidence of negligence on the part of appellant, and, if the injury of appellee was the result of this negligence, as the evidence tended to prove, then appellant was liable. The questions of negligence and contributory negligence were properly submitted for determination by the jury and upon correct declarations of law.

This court has defined the duty of carriers to passengers on combination freight and passenger trains, and also the duty of passengers on such trains with reference to their own safety. We need not repeat here the rules applicable in such cases.

The instructions of the court were in harmony with the doctrine announced in the following cases: St. L., I. M. & S. Ry. Co. v. Hartung, 128 S. W. 1025; S. W. Ry. Co. v. Wingfield, 126 S. W....