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

• Decision Date: 19 October 1895
• Citation: 32 S.W. 500,61 Ark. 141
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. AVEN
• Court: Arkansas Supreme Court

32 S.W. 500

61 Ark. 141

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

Supreme Court of Arkansas

October 19, 1895

Appeal from Saint Francis Circuit Court GRANT GREEN, JR., Judge.

Reversed and remanded.

Dodge & Johnson for appellant.

1. The verdict is contrary to the evidence and to the law. The frightening of the horse was the proximate cause of the injury, and not the absence of guard rails. Defendant was not in law compelled to anticipate the unreasonable scaring of any horse; the unusual is not to be guarded against, only the common and usual events of life. 5 Exch. 248; 29 Wis. 144; 56 Ark. 390; Ib. 521; 139 U.S. 237; 95 id. 130; 2 Thomps. Neg 1084; Addison on Torts, 5; 29 S.W. 980; 4 Gray (Mass.), 397; 57 Ark. 414; 99 Mass. 605; Wills, Cir. Ev. p. 157; 50 N.W 365; 65 F. 628; 115 Mass. 307; 34 A. & E. R. Cases, 551; 97 Mass. 258, 267; 98 id. 580; 148 id. 486. The liability of defendant is the same as that of a municipality, and it is held that it is not liable when the horse takes fright at some object for which the municipality is not responsible etc. 29 Wis. 296; 57 Mo. 156; 68 Me. 152; 97 Mass. 258. As to concurring faults, see 1 Suth. Dam. p. 57; 70 Pa. 86; and as to proximate cause, 56 N.W. 19; 57 id. 117; 45 id. 1015.

2. It was error to refuse to instruct the jury to return a verdict for defendants. 57 Ark. 468; 34 A. & E. R. Cases, 551; 112 Pa. 574. The 1st, 2d, 3d, 4th instructions for plaintiff were erroneous, and it was error to refuse defendants 6th, 7th and 8th. See cases supra.

3. The verdict is excessive.

S. R. Cockrill, for appellee.

1. The exceptions of defendant were in gross. 114 N.Y. 399-405; 140 U.S. 238; 2 Wall. 339; 121 Ind. 387; Elliott, App. Pro. sec. 791; 10 U. S.Ct. App. (8 Ct.), 497; Ib. 630-1; 118 N.Y. 224-231; 88 N.Y. 13.

2. It was for the jury to say, upon the facts, whether the accident would have happened but for the absence of guard rails. The jury settled that fact in plaintiff's favor, and that ends the controversy. It is so held everywhere in such cases. The only divergence is found in Masssachusetts and Maine, where it is held that if plaintiff loses control of his horse, he cannot recover. 29 Wis. 296; 71 id. 558; 68 Md. 389; 117 Pa. 353; 9 Ill. Ct. App. 229; 54 N.W. 693; 145 Pa. 220; 1 Suth. Dam. p. 262 n; 40 Conn. 238; 43 id. 148; 54 Mo. 598; 9 Vt. 411; 42 N.H. 197; 81 Pa. 44; 68 Md. 389; 116 N.Y. 476; 77 id. 83; 47 Hun, 439; 127 N.Y. 659; 79 Iowa 204; 25 id. 108; 32 Minn. 308. Against this array stand Massachusetts and Maine alone. But even in Massachusetts the facts in this case justify a recovery. 145 Mass. 333-336. 56 Ark. 387 is consistent with appellee's theory.

3. The fact that plaintiff went upon the bridge when it had no guard rails was not evidence of contributory negligence. 52 Ark. 368; 54 id. 389; 59 F. 237.

4. The verdict is not excessive. 56 Ark. 594, 603; 13 Hun, 1; 18 Ark. 398; 48 id. 407; 57 id. 320; 11 How. (U. S.) 587; 2 Story, 661; 3 Sedg. Dam. sec. 1320; 18 S.E. 278; 31 Abb. N. C. 56; 57 Mich. 107, 119; 57 Tex. 105; 70 Iowa 188; 61 Iowa 452; 29 N.Y.S. 391; 76 Hun, 233; 12 Mo.App. 466; 71 Tex. 470; 33 Ill.App. 450; 5 Mont. 257; 4 Utah 215; 79 Tex. 643; 31 Kas. 197; 33 id. 298; 87 Ky. 327; 6 Utah 357; 16 Daly, 130; 76 Wis. 120; 69 Tex. 556; 87 Ill. 94; 24 Hun, 184; 39 id. 5; 62 Tex. 118; 14 N.Y.S. 336; 25 S.W. 1087; 11 id. 333.

OPINION

BATTLE, J.

John W. Aven brought this action against the St. Louis, Iron Mountain and Southern Railway Company to recover damages for a personal injury which he alleges was received by him through the negligent construction and maintenance of a bridge and the approaches thereto, which constituted the highway crossing of the defendant's railway track.

In 1882 the defendant constructed a railway over a public road in St. Francis county. It erected an embankment 6 feet high, and dug a ditch on east side thereof 10 feet deep, 18 feet wide at the top, and 5 feet and 4 inches at the bottom, and thereby rendered the road impassable. In order to restore the road to use, and make a crossing for it over the railway, it made an inclined embankment to its track on the west, and placed a bridge across the ditch on the east, and approaches to the same. The bridge was 25 1/2 feet long, and from 12 to 16 feet wide. One witness said that the principal part of the flooring of the bridge was 16 feet long, and that there were two or three planks near the center 12 feet in length; and another said about one-half were 12 feet long, and the other half 16 feet, and that the short planks began about the center of the bridge, and extended to the east end of it. "The fall of the approach to the bridge was about 21 inches to 10 feet, on the west side of the bridge, the side upon which the plaintiff approached at the time" the injury was received. The incline on the west side of the embankment was very steep. There were no railings or banisters on the bridge at the time of the injury.

On the morning of the 17th of September, 1892, the plaintiff approached the bridge from the west, driving a horse and cart or buggy. What followed he relates as follows: "I drove off, and my mare trotted on up to the railroad dump, and walked on the railroad track, and just about the time the cart got in the center of the track, the horse took a scare from something, I never have known what, but she made a fearful lunge, and jumped just as far as she could, and partially fell right at the edge of the bridge; and as she came up I made an effort to jump out of the cart, and as I did that she came up, and went right over the bridge. The shafts of my cart struck the bridge, and she jumped square down on her head, and I and the cart and all pitched right over into the ditch and struck the bottom." The evidence shows that she jumped off about the center of the bridge. In the fall the plaintiff's right leg was broken just above the ankle joint; both bones were broken; one pierced through the skin at the ankle. The joint was opened; the membranes around it were ruptured; and the synovial fluid escaped. He was confined to his bed many weeks, and suffered excruciating pain.

Plaintiff considered his mare safe; and testified that he never knew her to become frightened before she leaped from the bridge, but she was a "high-headed animal." His wife constantly refused to cross the bridge with him, in his buggy, while driving the mare, and would get out and walk across, but she did ride over with him when he was driving another horse, which died prior to the time he purchased the mare. He further testified that he never knew that the mare was partially blind, but she had a white speck in one eye. He traded her about four weeks after he was injured, and while he was confined to the house. One witness testified that she was blind in one eye; and another that he knew that she was a "fiery and high-headed animal." One witness testified that he asked the plaintiff, on the day of the accident, how it happened, and he replied, "I can't tell, but she must have had a fit."

The court instructed the jury, in part, over the objections of the defendant, as follows:

1. "The court instructs the jury that where a railroad is built across a public highway, it is the duty of the railroad company to construct and maintain proper crossings for the benefit of the traveling public; and if, in the construction of the railway at and across the public highway, the railroad company cuts a ditch along the side of the track, and across the highway, it is its duty to construct and maintain a safe and suitable bridge across and over said ditch, so that the highway may be restored to a safe condition for travel."

2. "If the jury find from the evidence that the defendant cut a ditch across the public highway, as alleged in the complaint, and failed and neglected to erect and maintain a safe and suitable bridge across the same, and that the failure and neglect of the defendant railroad company to construct and maintain a safe and suitable bridge across the said ditch was the proximate cause of the injury to plaintiff, then you should find for the plaintiff."

3. "If the jury find from the evidence that the defendant railroad company cut a ditch across the public highway, as alleged in the complaint, and that it constructed a bridge across the same, then it is a question of fact for you to determine whether or not the same was sustained and maintained in a safe and suitable manner, and whether or not it was necessary that guard rails should have been constructed and maintained on said bridge; and if you find that it was necessary, and that the defendant failed and neglected to construct and maintain such guard rails, and that its negligence and failure in this behalf was the proximate cause of the injury and damage to plaintiff, then you should find for the plaintiff."

4. "If the jury find from the evidence that the construction of the said railway made it necessary for a bridge to be erected at the crossing of the railroad and public highway, in order to make this highway available to the public, the court instructs you that it was the duty of the railroad to erect and maintain such bridge so that the highway should be restored to as passable a condition, and so kept, as was consistent with the use of the railroad company, and if guard rails were required for that purpose, then it was the duty of the railroad company to place guard rails or banisters upon the bridge; and if you find that such was necessary, and that the railroad failed and neglected to provide and maintain the same, and that the absence of the said guard rails or banisters was the proximate cause of the injury to plaintiff, then you will find for the plaintiff."

And instructed the jury as follows, at the request...