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

• Decision Date: 14 February 1891
• Citation: 15 S.W. 610
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HOPKINS.
• Court: Arkansas Supreme Court

15 S.W. 610

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

Supreme Court of Arkansas.

February 14, 1891.

Appeal from circuit court, Pulaski county; J. W. MARTIN, Judge

Dodge & Johnson, for appellant. T. J. Oliphint, for appellee.

COCKRILL, C. J.

The appellant maintained a ticket-office in the city of Little Rock, and advertised the fact by means of a large wooden sign fastened to the wall over the entrance from the street, 15 feet above the sidewalk. The sign fell upon the appellee, and injured him, without fault of his, while he was upon the sidewalk. This appeal is prosecuted to reverse a judgment for damages in the sum of $750, recovered by the appellee for the injury. When the sign-board was first put up it was securely fastened. Its weight was supported by brick projections from the wall. Subsequently the servants of an electric light company removed it from its fastenings in order to run electric wires into the railway office. That fact was known to the railway agent in charge of the office. He had been warned at the outset by the contractor who put the sign in position that the electric light workmen would be compelled to loosen the fastenings if they were permitted to follow instead of preceding him. The sign was replaced in position by the electric light workmen, and two months thereafter fell and injured the plaintiff. An inspection of it after the accident showed that the wires which were used to hold it on two of the three hooks had been cut with scissors close to the sign. The supposition of all the witnesses was that the cutting was done by the electric light workmen. There was no positive proof of that fact. The sign fell in the month of March. There was testimony tending to show that the usual March winds of this latitude prevailed at the time, while other witnesses thought there was no disturbance of any object on the street from wind.

The railway complains of the following part of the charge to the jury: "If you find from the evidence that the defendant caused the sign mentioned in this action to be placed on the side of and in front of its ticket-office, in the city of Little Rock, and over and above the sidewalk, which is a public highway, and that while the plaintiff was on said sidewalk, and under said sign, the same fell of its own weight from its place, and upon the plaintiff, and injured him, you are instructed that the fact of said falling of said sign in the manner aforesaid raises a presumption of negligence in maintaining said sign, and you should find for the plaintiff, unless you should find that said presumption is overcome by a fair preponderance of evidence going to show that a proper degree of diligence had been exercised by defendant." It is argued that the charge directs the jury to presume negligence without finding proof of it. If it had left the jury to find against the railway merely upon proof that the plaintiff had been injured by the falling of a sign from a building in which the railway was an occupant, it would be subject to the objection urged, and therefore erroneous. But the charge must be read in the light of the admitted facts and of the hypothesis upon which it is based. They are as follows: The sign was placed in a...