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

• Decision Date: 23 April 1898
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BARNETT
• Court: Arkansas Supreme Court

45 S.W. 550

65 Ark. 255

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

Supreme Court of Arkansas

April 23, 1898

Appeal from Clay Circuit Court, Western District, FELIX G. TAYLOR Judge.

Judgment reversed and cause remanded for new trial.

Dodge & Johnson, for appellant.

Railroad companies are not insurers of the safety of persons rightfully on their platforms. The only duty they owe such persons is to use ordinary care to keep their platforms etc., in safe condition. 48 Ark. 493; 61 Ark. 155; 55 Ark 432; ib. 19; 13 Peters, 181; Thomp. Car. of Pass. 124, 183, 199; 56 N.Y. 655; 11 Allen, 312. The duty of exercising the highest degree of care, and diligence continues only during the transportation on the cars. Thomp. Car. Pass. 104; 57 Ark. 298. There is an utter failure to prove any actionable negligence with respect to the safety of the platform. Incompetent testimony was admitted.

Annie Barnett, appellee, pro se.

Railway companies are bound to keep in a safe condition all their platforms, etc., to which passengers have a right and naturally do resort to, in their approach to or exit from the company's cars. Whit. Smith Neg. 390; 26 Ia. 124; 37 Ark. 517; 2 Wood, Railways, 1170; 46 Ark. 195, and cases cited; 48 Ark. 125; 19 S.W. 182; 29 S.W. 860; 2 So. 586; 5 Am. & Eng. Enc. Law (2 Ed.), 572, 586, 587, and notes; 76 F. 519. Sufficient foundation was laid, in appellee's testimony, upon which to base a hypothetical question to an expert. 1 Greenl. Ev. § 440; 1 Cent. Rep. 625; 108 Pa.St. 395; 9 Car. 601. Testimony founded on facts known to witness is not incompetent. 61 Pa.St. 404; 1 Cent. Rep. 143; 110 Pa.St. 339; 17 N.Y. 350; 2 L. R. A. 669, and note; 39 S.W. 550; 63 Ark. 391 The fact that the platform was defective and that the plaintiff was injured was sufficient to cast the burden on appellant to prove that it was not negligent 21 S.W. 883; 54 Ark. 213; 15 S.W. 610; 5 Am. & Eng. Enc. Law (2 Ed.), 522. There being no error in the instructions, this court will not disturb the findlngs of fact. 48 Ark. 495; 37 S.W. 867.

OPINION

WOOD, J.

This suit is to recover damages for personal injuries produced by the alleged negligence of appellant in keeping a defective platform. The answer denied negligence, and charged appellee with contributory negligence. The evidence on behalf of the appellee tended to show that, as she debarked from one of appellant's trains at Corning station, she was injured in stepping upon a plank at the platform which was loose and tilted to one side, thereby letting her fall. The plank was at the edge of the platform. It lay straight with the track. One of the witnesses testified: "The plank was loose; gave down an inch over the sleeper; would tilt towards the track." Another testified: "If a person stepped right on the edge of the plank, it would raise a little--not a great ways--because the nails had just worked loose. The plank was a solid two-inch plank, but a little loose." On behalf of appellant the evidence tended to prove that the plank was not loose. One witness testified "that he weighed 198 pounds, and the next morning after the injury stepped upon the plank, and it would not title with him. He examined it, and found it sound." Other witnesses testified that they inspected the plank, and did not find anything the matter with it. With the evidence thus conflicting, we would not disturb the verdict upon the question of fact as to the defective platform. But the jury should have been properly instructed as to the degree of care that railroads owe their passengers to protect them from injury by reason of defective platforms.

1. The court instructed the jury as follows: "That it is the duty of the railroad company to keep the platform at its various station houses in good repair and safe condition for the use of those who have a legal right to go upon them. And if you find from a preponderance of the evidence that the injury complained of in this case was directly caused by the failure of the defendant railroad company to keep the platform of the depot in repair, then you will find for the plaintiff."

In McDonald v. C. & N.W. R. Co., 26 Iowa 124, Judge Dillon, speaking for the court, said: "They (railroads) are bound to keep in safe condition all portions of their platforms and approaches thereto, to which the public do, or naturally would resort." Our own court in Tex. & St. L. R. Co. v. Orr, 46 Ark. 182, uses this exact language, and in St. L., I. M. & S. R. Co. v. Cantrell, 37 Ark. 519, and L. R. & F. S. R. Co. v. Cavenesse, 48 Ark. 106, 2 S.W. 505, this court has apparently sanctioned the rule in the broad terms as above quoted. An examination of the facts of the Arkansas cases, however, will show that this court was not called upon to discuss, nor did it have in mind, the care which should be exercised by a railroad to furnish its passengers safe platforms at its stations for entrance to and exit from its trains. In Tex. & St. L. R. Co. v. Orr the injury was produced by an "open ditch and trestle," the existence of which the railway knew, and the railroad did not pretend to deny that it was negligence to thus keep it, provided the passengers were justified in passing over the route in which the said ditch and trestle lay. In St. L., I. M. & S. R. Co. v. Cantrell, and L. R. & F. S. R. Co. v. Cavenesse, supra, the injuries complained of were not produced by defective platforms at all. In none of these cases, therefore, was the exact question we have here involved.

In speaking of the duties of masters to servants or railroads to passengers, text writers and judges often use expressions like these, to-wit: "They are bound to furnish safe machinery, safe appliances, safe places to work, safe platforms," etc. Hutch. Car. § 516; Penn. R. Co. v. Henderson, 51 Pa. 315; Liscomb v. Ry. & Trans. Co., 6 Lans. 75; Toledo, etc. R. Co. 1. Grush, 67 Ill. 262; McDonald v. C. & Ft. S. Co. v. Cavenesse, supra; Ray, Neg. Imp. Duties, 91 Wallace v. Wilmington & N. R. Co., 18 A. 818; 2 Wood, Railways, pp. 1340, 1341, 1344.

But in none of the works or adjudicated cases does the word "safe," when thus used, have an absolute or unqualified meaning; for that would make these classes of persons guarantors or insurers of the safety of their servants, employees and passengers. Every legal tyro knows that such is not the law. "Accidents, strictly speaking, are those things which human prescience and prudence can neither foresee nor forestall. Our own court in L. R. & F. S. R. Co. v. Cavenesse, supra, shows clearly that the word "safe," when used as above, does not have an absolute or unqualified meaning; for, while it is said "that it is the duty of the carrier to keep its stations and approaches thereto in good condition, and to provide safe and convenient means of entrance and departure," it is also said that carriers of passengers are not insurers of the safety of their passengers, as they are of goods, at common law. While lawyers understand this, jurors may not. So, to prevent any misapprehension of the term "safe," when employed as above, the trial court, if requested, should so define it as to present the real duty of railroads to their passengers in the matter of shielding them against dangers growing out of the use of station platforms. What is that duty? Railroads, according to the decided weight of authority, must exercise ordinary care in providing station platforms that will secure their passengers, in so far as such care can do so, against any injury that may result in the use of them. 1 Fetter, Car. Pass. § 47; Kelly v. Manhattan Ry. Co., 112 N.Y. 443; 20 N.E. 383; Lafflin v. Buffalo R. Co., 106 N.Y. 136, 12 N.E. 599; Taylor v. Penn Co., 50 F. 755; 4 Elliott, Railroads, § 1590, cases cited; Hutchinson, Car. § 521a; Moreland v. Boston & P. R. Co., 141 Mass. 31, 6 N.E. 225.

Such "ordinary care" is that which a man or ordinary prudence would exercise under the circumstances to accomplish the end in view, namely, the safety of the passenger. As was said in Central R. & B. Co. v. Ryles, 84 Ga. 420, 11 S.E. 499, ordinary care "is a relative, and not an absolute term. The degree of car and foresight which it is necessary to use (in any given case) must always be in proportion to the nature and magnitude of the injury that will be likely to result from the occurrence which is to be anticipated and guarded against." St. L., I. M. & S R. Co. v. Hecht, 38 Ark. 357! Bailey's Master & Servant, "Care," § 963, et seq., 4 Elliott, Railroads, p. 2479. It will thus be seen that even the ordinary care which...