St. Louis, Iron Mountain & Southern Railway Co. v. Tomlinson

• Decision Date: 06 July 1901
• Citation: 64 S.W. 347,69 Ark. 489
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. TOMLINSON
• Court: Arkansas Supreme Court

64 S.W. 347

69 Ark. 489

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. TOMLINSON

Supreme Court of Arkansas

July 6, 1901

Appeal from Saline Circuit Court ALEXANDER M. DUFFIE, Judge.

STATEMENT BY THE COURT.

Action by Regina Tomlinson, widow and administratrix of the estate of Arthur Tomlinson, against the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for his death. The facts are stated in the opinion. On the trial in the circuit court the presiding judge gave to the jury the following instructions at the request of the plaintiff:

"1. If you find from a preponderance of the evidence that the defendant railway maintained a station or depot for the reception and discharge of passengers from its cars at Little Rock on July 8, 1894; that on that day it placed passenger coaches for the reception of passengers in such a manner as to make it necessary to cross its railroad track or tracks in passing to and from the coaches and station platform; that Lieutenant Tomlinson accompanied to one of these coaches a departing passenger who needed assistance, or that he visited the coach to look after the comfort of such passenger when the coaches were open and ready for the reception of passengers, and when passengers were passing back and forth between the platform and coaches with the apparent acquiescence of the railway, then the court instructs you that Lieutenant Tomlinson was rightfully upon the railway's premises under an implied assurance that no engine or train would be permitted to run over an intervening track, unless the railway should use ordinary care and prudence to give timely warning of the approach, and that he had a right to lessen his own watchfulness; and it was not incumbent upon him to be on the lookout for danger if, under the circumstances, he had no reasonable ground to suspect that danger was to be apprehended. If you further find, from a preponderance of the testimony, that Lieutenant Tomlinson after seasonably visiting the coaches for either of the purposes above mentioned, while returning therefrom to the station platform by the usual route, in the exercise of ordinary care and prudence, was killed by an engine operated by the defendant railway without the observance of ordinary care and caution, your verdict should be for the plaintiff.

"2. What would be due care under some circumstances would be negligence under others. Negligence is the failure to use the care which a reasonably prudent man would determine, in view of all the circumstances, that the situation demands. If you find that the railway failed to exercise such care, you should find that it was guilty of negligence.

"3. If you find from a preponderance of the evidence that the defendant railway backed one of its engines over a track between the coaches and the platform, without guard or lookout, or not having such guard or lookout, without signal or warning, which, under the circumstances, would reasonably attract the attention of a man of ordinary prudence, who was rightfully engaged in passing between the coaches and station platform, the railway was guilty of negligence, and your should so find.

"5. The burden of proving in a case like this that the deceased was guilty of negligence which contributed to his injury rests upon the railway company, unless the plaintiff's evidence proves it. If, therefore, you find that it is not proved by a preponderance of the evidence in the case that Arthur Tomlinson failed to exercise that care, caution and prudence which would be expected to be used under like circumstances by persons possessing ordinary care and prudence, you must find that he was free from negligence.

"6. If you find from a preponderance of the evidence that at the time Lieutenant Tomlinson left the coach it was raining, and that, in undertaking to protect himself from the rain, he did only what a man of ordinary prudence would have done under similar circumstances, you will find that Tomlinson was not guilty of negligence in that respect.

To the giving of these instruction the defendant excepted. There was a judgment in favor of the plaintiff for $ 20,000, from which defendant appealed.

Judgment reversed and new trial ordered.

Dodge & Johnson, for appellant.

Under the evidence appellant was guilty of contributory negligence. Tomlinson was not a passenger. 96 Pa.St. 267; 5 Am. & Eng Enc. Law (2d Ed.), 486; 48 Ark. 493; id. 369. Appellant owed him no duty except not to wilfully injure him. 48 Ark 493; Thompson, Carr. Pass. 104, 105; 71 Ill. 500; 59 Pa.St. 129; 36 Ark. 50; id. 376; 41 Ark. 549; 46 Ark. 535. He was negligent in being where he had no right, and hence he cannot recover. 40 Ark. 322; 101 Pa.St. 258; 29 Oh. St. 367; Ell Railroads, § 1248. But, if it be conceded that Tomlinson was a licensee by sufferance, he took his license with its incident risks. Elliott, Railroads, § 1250. Appellant's only duty to him was to refrain from wanton or wilful injury to him. 66 N.Y. 246; 102 U.S. 584-5; L. R. 4 Exch. 254. As to measure of care due by appellant, see further: 58 Wis. 656, 657; 51 Mich. 238; 34 N.J.L. 472; 10 Allen, 372; 29 Oh. St. 365; 59 Wis. 150; 10 All. 372; 99 Mass. 210; 59 Pa.St. 129; 47 Ind. 43; 111 Pa.St. 258; 84 Ga. 1. Tomlinson was guilty of contributory negligence such as to bar recovery. 154 Mass. 403; 155 Mass. 44; 165 Mass. 264; 156 Mass. 180; 158 Mass. 10; 4 L. R. A. 632; 97 Mass. 275; 135 Mass. 225; 12 W. N. C. 348; 122 Pa.St. 58; 23 W. N. C. 189; 40 La.Ann. 800; 22 Minn. 22; 74 Ia. 607; 74 F. 299; 44 S.W. 703; 57 F. 926; 73 F. 627; 57 F. 926; 61 Ark. 655; 150 U.S. 248; 12 Am. & Eng. R. Cas. (N. S.), 460. The first instruction asked by plaintiff was erroneous in that it told the jury that Tomlinson "had a right to lessen his own watchfulness, and it was not incumbent on him to be one the lookout for danger, if, under the surrounding circumstances, he had no reasonable grounds to suppose that danger was to be apprehended." 48 Ark. 493; 54 Ark. 431; 55 Ark. 430; 55 Ark. 428; 56 Ark. 434; 56 Ark. 278; 59 Ark. 130; 61 Ark. 620; 62 Ark. 156, 159; 61 Ark. 549; 64 Ark. 368; 65 Ark. 67.

Cockrill & Cockrill, for appellee.

There being evidence to sustain the verdict, it will be sustained. 53 Ark. 75, 80; 54 Ark. 229, 234; 14 Ark. 21; 25 Ark. 90; 17 Ark. 385; 13 Ark. 285; 13 Ark. 694. The evidence warranted a finding of negligence on the part of the railway. 65 Ark. 235; 48 Ark. 491; 48 Ark. 366; 55 Ark. 428; Deering, Neg. 248, 251; 54 Ark. 159; 12 Am. & Eng. R. Cas. (N. S.), 370, note; 122 N. Car. 832, 840; 27 S.W. 44; 25 So. Rep. 338; 26 N.J.Eq. 474. It is not incumbent upon a passenger, who is required to cross a railroad track at a station to reach his train, to be on the lookout for danger, unless he is specially apprised that danger is to be apprehended. 59 Ark. 122; 168 U.S. 339; Hutch. Carr. § 616; Beach, Contr. Neg. § 160; Fetter, Carr. Pass. § 136; 149 U.S. 43; 78 N.Y. 338, 334; 113 N.Y. 363; 84 N.Y. 246; 60 Mississippi 126; 18 Colorado 368; 72 Md. 519; 60 Md. 449, 463; 465; 88 Pa.St. 327, 333, 334; 27 N.J.Eq. 550; 26 N.J.Eq. 474; 105 Mass. 203; 31 Ind. 408; 88 F. 455, 460; 40 N.Y.S. 783; 60 Ill.App. 265; 59 Ill.App. 21; 60 Ill.App. 525; 39 La.Ann. 649; 36 Kan. 769; 2 S.W. 181; 3 Tex. Civ. App. 89; S. C. 22 S.W. 242; 41 Mich. 667; 161 N.Y. 232; S. C. 55 N.E. 819; 80 Ill.App. 675; 122 N. Car. 905; 80 Ala. 600. As to duty in general to passengers and prospective passengers at depots, see: 88 F. 455; 12 Am. & Eng. R. Cas. 170. A passenger's escort may rely upon the railroad's implied assurance of safety, just as the passenger can. Thomp. Carr. 106; 72 Mo. 392; 64 Tex. 251; 31 S.W. 737; 113 N.Y. 383; 64 Miss. 584; 36 Kan. 769; 91 F. 466, 472; 54 N.Y.S. 766; 59 Pa.St. 129, 143; 51 Mich. 501; 65 Ga. 370, 375; 119 Ind. 542; 59 Mo. 27; 6 Gray, 64; 59 Me. 183; 42 La.Ann. 1156; 34 La.Ann. 648; 46 Ark. 182, 196; 60 Ark. 106, 110; 122 N.C. 832; 52 S.W. 7, 11. Tomlinson was under duty to look and listen. 3 Ell. Railroads, §§ 1171, 1157; 29 A. 258; 118 Ind. 305; 1 Exch. 21; 122 N.Y. 234; 96 N.Y. 676; 80 Me. 430; 38 F. 15; 45 Oh. St. 678; 175 Ill. 183; 10 Allen, 368; 24 Oh. St. 631; 54 N.Y.S. 766; 64 Miss. 584. Appellant impliedly invited Tomlinson to pass over the track. 54 Ark. 159; 59 Ill.App. 21; 39 La.Ann. 649. The question of contributory negligence was for the jury. 9 Am. & Eng. R. Cas. (N. S.), 166; 152 U.S. 107, 113; 168 U.S. 339, 348; 93 F. 384. Tomlinson was not guilty of contributory negligence, as a matter of law, merely because of the use he made of his cape. 92 F. 846; 163 U.S. 353, 356;; 4 Am. & Eng. Enc. Law, 76, note 2; 74 Ill.App. 387, 396; 36 S.W. 319; 79 Wis. 404; 37 Hun, 295; 59 N.Y. 631; 155 Mass. 190.

OPINION

RIDDICK, J., (after stating the facts).

This is an action brought by the widow and administratrix of the estate of Arthur Tomlinson, deceased, to recover damages for his death, which plaintiff alleges was caused by the negligence of the employees of the defendant railway company. The death of Tomlinson took place under the following circumstances: In July, 1894, there was a meeting in Little Rock of several military companies for the purpose of a competitive drill. One of the companies, the Indianapolis Light Artillery, was scheduled to leave Little Rock on its return the evening of the 8th of July. To accommodate the members of this company, the Iron Mountain Railway Company had two passenger coaches placed on its second and third tracks from the depot in Little Rock, Arkansas. Between these coaches and the depot there was the main track of the railroad, and possibly a side track also, which passengers were compelled to cross in order to reach the coaches. Tomlinson was lieutenant of a company from Washington, D. C which had also attended the drill, and he was acquainted with...