St. Louis, Iron Mountain & Southern Railway Company v. Battle

• Decision Date: 08 June 1901
• Citation: 63 S.W. 805,69 Ark. 369
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BATTLE
• Court: Arkansas Supreme Court

63 S.W. 805

69 Ark. 369

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

Supreme Court of Arkansas

June 8, 1901

Appeal from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

STATEMENT BY THE COURT.

The Searcy & West Point Railroad, which we will designate as the "Searcy Road," intersects at right angles with the Iron Mountain Railroad at a station on the Iron Mountain called Kensett.The Iron Mountain road was built first.Within the angle of the intersection of the two roads a platform was erected by the Searcy road, on the right of way of both roads.It stood about six feet west from the track of the Iron Mountain, and about three feet north of the track of the Searcy road.It was three and one-half or four feet high twelve feet wide and thirty-seven feet long.It stood about on a level with the platform of the cars of the Searcy road and was reached from said cars by a gang plank.It was about thirty-five feet from the station house of the Iron Mountain road.The cinder platform or ground between the elevated platform and the station house was reached from the elevated platform by an incline about sixteen feet long and six and one-half feet wide.This incline was at the east end of the elevated platform, and situated diagonally across from the east end of the Searcy coach.It was in evidence that the elevated platform was built by the Searcy road for its own use and convenience.The Searcy road did not have affirmative permission of the Iron Mountain to erect the platform, but it was built without objection from the Iron Mountain.The Iron Mountain knew the platform was there.Sometime before the accident it had given directions to the Searcy road to have the platform removed.The same was not removed, however until sometime after the accident.The reason given by the officers of the Iron Mountain for wanting the platform removed was because of its unsightliness.Passengers on the Iron Mountain road who were intending to go to Searcy over the Searcy road without break in their journey had to reach the coach of the Searcy road by way of the elevated platform and the incline thereto.Likewise, passengers on the Searcy road who intended to take the Iron Mountain train at Kensett on continuous journey, passed over this platform and the incline thereto to the cinder platform and the station house of the Iron Mountain.It was the only route for such passengers,--at least the natural and usual route.The Searcy road's cars were drawn by a mule.The road ran from Searcy to Kensett.

On the night of January 21, 1898, appellee, a citizen of Little Rock, being at Searcy, took the Searcy road for Kensett, intending to go thence, without break in his journey, to Little Rock over the Iron Mountain road.The Searcy train left Searcy at about the usual hour (10:45 p. m.), and arrived at Kensett at about 11:40 p. m. The Iron Mountain train which Battle expected to take was due at Kensettat 12.03 a. m., but was somewhat belated.Appellee and other passengers, after arriving at Kensett, remained some fifteen or twenty minutes on the Searcy coach, when, hearing the sound of an approaching engine, and supposing it to be the train desired they passed out of the Searcy coach at the east end, onto the elevated platform; and appellee, in attempting to reach the incline and descend to the cinder platform or ground fell and was severely injured.He sued the appellants, alleging that his injuries were caused by the negligent construction and use, and permitting the maintenance and use, of a dangerous platform and approaches thereto and by the failure to keep the platform and approaches thereto lighted at night for the safety and convenience of persons arriving and departing on the respective trains of appellants.

The separate answer of appellants denied the negligence charged, and Set up the contributory negligence of appellee.Other facts will be stated in the opinion.

Judgment affirmed.

Dodge & Johnson, for appellant, St. Louis, etc., Ry. Co.

Appellee was guilty of negligence, such as bars recovery.149 Pa.St 65; Ray, Neg. Imp. Duties, 387.Only ordinary care in lighting its platforms is required of a railroad company.84 Ala. 159;64 N.W. 766;8 Houst. 529;112 N.Y. 443;107 N. Car. 576.A passenger not using the approach in the ordinary and usual way, and while same was safely lighted, cannot hold the carrier to extra vigilance to guard against accidents occasioned by his voluntary delay.106 N.Y. 136;51 Mich. 601;32 Minn. 390;4 Elliott, Railroads, § 1590.There was no joint liability, and no judgment should have been had against the Iron Mountain company.119 Ind. 583;13 Ill.App. 437;31 ib. 596;110 Ill. 294; 2 Hilliard, Torts, 248;26 Pa.St. 482.If there is any liability, it rests upon the first carrier, the appellee not having been discharged, as its passenger, when the accident happened.36 N.W. 669;23 S.W. 737;142 Mass. 251;154 Pa.St. 364;15 N.Y.S. 579;22 S.W. 242;30 S.W. 592;100 Mass. 208.

Further, as to rules governing joint liability of railroads, see: Hutch.Carr. § 515;58 Am. & Eng. R. Cas. 594;22 N.Y. 258;58 F. 762;3 Biss. 43.

Grant Green, Jno.T. Hicks and R. A. Dowdy, for appellant, Searcy & West Point Railroad Company.

The evidence fails to show any custom which would bind appellant to continue the lights on the platform until the arrival of the Iron Mountain train.27 Am. & Eng. Enc.Law, 717;62 Ark. 33.The conductor had no authority to permit appellee to remain in the car; and the objection to the evidence on that point should have been sustained.27 S.W. 496;97 Mich. 154;96 Pa.St. 201;78 Ind. 292;4 Am. & Eng. R. Cas. 602;48 Miss. 112;1 Sh. & Redf. Neg. § 147;55 Kan. 586.Cf.40 Ark. 298;53 Ark. 298;58 Ark. 318;S. C.24 S.W. 500;Mech. Ag. 706-710;18 Wis. 185;94 Mo. 255;27 L. R. A. 161; Thomp.Neg. 459;42 Kan. 465.

J. W. House, for appellee.

Railroad companies are required to keep in a reasonably safe condition all portions of their platform and approaches thereto to which passengers or those coming to take passage would naturally resort, and especially all such platforms and approaches as have been constructed and used, or permitted so to be, by the company.37 Ark. 519;46 Ark. 195;48 Ark. 125;65 Ark. 255;26 Ia. 124;2 Am. & Eng. R. Cas. 497;13 id. 29;18 id. 153;27 id. 137;Ell. Railroads, § 1641;35 Am. & Eng. R. Cas. 476.It is the duty of the railroad companies to have their platforms and approaches adequately lighted at night, and for failure to do so they are liable for injuries occasioned thereby.49 Ark. 279;18 Am. & Eng. R. Cas. 153;34 La.Ann. 777;8 Del. 529; Thomp.Carr. 108; Ray, Neg. Imp. Duties, Pass. 90, 91.The rule applies as well to persons coming to take passage as to persons departing.Hutch.Carr. § 516;Ray, Neg. Imp. Dut. 97;36 F. 72;48 Ark. 491.Appellee, having remained in the coach with the assent of the conductor, was guilty of no negligence in so doing.86 Pa.St. 139;37 Ark. 519;47 Am. & Eng. R. Cas. 573;25 F. 627;66 N. Car. 499; Whart.Neg. § 371;Whitt. Smith, Neg. § 371.Appellants are joint tortfeasors and are jointly or severally liable.16 Am. & Eng. Enc.Law, 471;35 Pa.St. 128;19 Am. St. Rep. 755;129 Ill. 152;105 Ill. 364;45 N.Y. 628;39 Minn. 328;16 Am. St. Rep. 250;Patt. Ry. Acc. Law, § 224;Ray, PassengerCarr. 121; 122, 152; Hutch.Carr. 515 a;L. R.6 Q. B. 73;59 Me. 187;99 Mass. 217;53 Kan. 431;152 Pa.St. 334;56 Kan. 559;Bish. Non-Contr. Law, § 1086;19 C. B. (N. S.), 183;34 La.Ann. 777;40 N.E. 807;35 Pa.St. 128;110 Ill. 294, 301;21 Cal. 381;13 Ill.App. 439;119 Ind. 590;120 Ind. 205;3 Biss. 45;30 S.W. 278;1 Sh. & Redf. Neg. § 345;3 Allen, 405.

OPINION

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

1.Considering first the question of contributory negligence the proof shows that Battle was not very familiar with the platform and its incline, having passed over it only once before.On the occasion in question, when the train whistled which they supposed to be the one desired, Battle put on his overcoat, gathered up his valise in his left hand, with umbrella in his right, and walked out of the car (first feeling with his umbrella for the gang plank) onto the platform, still using his umbrella as a guide to feel his way until he fell There was not sufficient light to enable him to see platform or the incline at the time he made his exit.But the proof tended to show that for ten minutes after the arrival of the Searcy train the platform was sufficiently lighted to have enabled Battle to pass out safely, and it is insisted that he was guilty of contributory negligence in not passing out during that time.The proof tended to show a custom for passengers who did not intend to buy tickets and had no baggage to check, to remain on the Searcy coach until the arrival of the Iron Mountain train which they desired to take.Battle and the other passengers were invited by the driver and conductor of the mule car to remain on the Searcy coach, as there was no night porter at the depot who kept up the fires.True, the driver of the mule ear testified that he did not think he notified the passengers to remain on his coach, but he does not say that he did not do so.There is positive proof by other witnesses that he did invite them to remain, and the driver himself testified on this point as follows: "I remember Mr. Battle speaking to me, if I wanted them to get out, so I could go to sleep.I told them that I did not aim to go to sleep.That was just before I went into the depot."The Searcy road had no station house of its own.The only waiting place for its passengers was therefore its car.It was shown that it usually arrived at Kensett before the Iron Mountain train with which it made connection, perhaps as much as...