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

• Citation: 92 S.W. 789
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. DOOLEY.
• Decision Date: 03 February 1906
• Court: Arkansas Supreme Court

92 S.W. 789

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

Supreme Court of Arkansas.

February 3, 1906.

Appeal from Circuit Court, Ouachita County; Charles W. Smith, Judge.

Action by Fannie Dooley against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

B. S. Johnson, for appellant. R. G. Harper and Thornton & Thornton, for appellee.

BATTLE, J.

Fannie Dooley brought this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages suffered by her from a fall through steps erected by the defendant over and across a fence constructed by it along its right of way the injury being occasioned by the negligent failure of the defendant to keep the steps in repair. The defendant answered, disclaiming any right to or interest in the steps, and denying that it ever built the steps or invited the public to use them, or that it ever undertook to keep them in repair or that it was its duty to do so. The plaintiff recovered a verdict and judgment for $1,500. The defendant appealed to this court, and the judgment was reversed and the cause was remanded for a new trial. St. Louis, Iron Mountain & Southern Railway Company v. Dooley, 70 Ark. 389, 67 S. W. 1012. On a second trial plaintiff recovered a judgment for $750, and the defendant appealed to this court the second time.

The evidence adduced in the trial of the cause tended to prove the following facts:

The steps were built in the year 1891. The appellee was injured in 1897. In 1890 the railroad company built a fence along its right of way and across a dirt road that had for many years been used as a public highway, and until the fence was built. Bars were at first placed in the fence across the public road and remained there for some time, and were finally removed and a wire fence constructed instead. The wires were frequently cut and removed; and this continued until the steps were built across the fence, where it closed what had been the public road. After this the public continued to use it, as it had before, as a public way for pedestrians, and to use the steps as a part of the way. The steps and footway were near to and in the vicinity of the town of Arkadelphia, in this state, and were of frequent use and conduced much to the public convenience. The steps were repaired by appellant one, one and a half, two and three years, and as late as six months, before the accident. They were torn down and removed a short time after appellee was injured.

The court instructed the jury in the case, at the request of the plaintiff, as follows:

(1) "If the jury believe from the evidence that the defendant built a fence along the side of its tracks, and that there said fence crossed a road not a highway; the defendant built and maintained steps over said fence, and permitted the public to use the same in crossing said fence then they are instructed that the building of said steps was an implied invitation to the public to use the same as a highway, and in that event it became the duty of the defendant to use reasonable skill and diligence in building and maintaining the same, and if you further find that the defendant failed to use such skill and diligence in the building and maintaining, and that by reason of such failure, and without fault on her part, plaintiff was, while passing over the said steps thrown down and injured, you will find in her favor."

(2) "The jury are instructed, as a matter of law, that if a railroad company builds and undertakes to keep in repair, for the accommodation of the public, an approach to a private crossing, it is liable for an injury resulting from a defect negligently permitted to exist in said approach, through the crossing is not one that they were bound by statute to keep in condition; and although they may find that the defendant was under no obligation to build and maintain the steps in question, still if you find that they voluntarily undertook to do so, knowing that it was a crossing in common use by the public, it, in effect, invited the use of said steps by the public, and is responsible to persons so using the same for any injuries received by them, which results from a negligent construction and failure to keep in repair."

(3) "If the jury believe from the evidence that the defendant built a fence along its track and across a road not a highway; that defendant erected, or caused steps to be erected at the crossing of the fence and road, and by its continued...