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

• Decision Date: 21 February 1916
• Docket Number: 194
• Citation: 183 S.W. 748,122 Ark. 429
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DUFFEY
• Court: Arkansas Supreme Court

183 S.W. 748

122 Ark. 429

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

No. 194

Supreme Court of Arkansas

February 21, 1916

Appeal from Miller Circuit Court; George R. Haynie, Judge; reversed.

STATEMENT BY THE COURT.

Thomas Duffey sued the St. Louis, Iron Mountain & Southern Railway Company to recover damages sustained by him while a passenger on one of defendant's passenger trains, alleging that his injuries were caused by the negligence of the defendant and its servants. The plaintiff was a witness for himself and testified substantially as follows:

I am thirty-one years of age and have lived in Hempstead County about thirteen miles from the town of Fulton, all of my life. On the morning I was injured, Wade Cheatham and I came to Fulton and boarded the fast mail train of the defendant for the purpose of going to Texarkana. The train did not stop between Fulton and Texarkana. We were going to Texarkana to look for some cattle which had been stolen from me. I had a pistol in my pocket and had been told by the constable of my township that I had a right to carry it under the circumstances. Wade Cheatham had a bottle of whiskey in his pocket. When we got on the train we went into the toilet. Wade Cheatham then put his bottle of whiskey down on the floor but we had not drunk any of it after getting on the train. The auditor came into the toilet and demanded our tickets. He saw the bottle of whiskey and demanded that also. Wade Cheatham gave him the bottle of whiskey and he started out with it and threatened to have us arrested if we did not get off the train. He asked us if we did not know that it was a violation of the law to drink whiskey on the train. We told him that we had not been drinking it and he replied that it did not make any difference and that he would have us arrested in Texarkana, if we did not get off the train. Later on the auditor came into the coach where we were sitting. He had a pistol. The conductor and train porter were also there. They passed the pistol around among themselves and looked at us in a significant manner. Both Wade Cheatham and I went to different ones of the trainmen and told them our business at Texarkana, and tried to persuade them not to have us arrested. They insisted, however, that they would have us arrested if we did not get off the train before it arrived at Texarkana. They said they would slow the train down so we could get off. Finally the train porter came and notified us that the train had slowed down and that it was time for us to get off. The train was just getting into Texarkana. I was frightened and followed the porter out of the coach and got down on the steps of the car. The vestibule door had been opened before I got out there. I stood a few minutes on the second step and looked out. The train was running too fast for me to get off. I thought I would go back into the car but the man who took up our tickets came out there and placed his foot in my way. I was afraid to pass him and stood there on the step. I looked out to see a street car which was approaching and that is the last thing I remember. I believe I was knocked or pushed off the car. I did not recover my senses until about a week afterwards.

The plaintiff was severely injured and described the character and extent of his injuries. His testimony, in all essential respects, was corroborated by that of Wade Cheatham.

The train auditor admitted that he took the whiskey away from the negroes and threatened to have them arrested when the train arrived at Texarkana. He gave the bottle of whiskey to the conductor and he threw it out of the train.

The conductor and auditor were both old employees of the railroad company and denied that they had any altercation whatever with the plaintiff. They denied that they exhibited a pistol in his presence or that they even had a pistol. They said that they did not in any way intimidate him or try to force him to leave the train, and that they did not know that he was injured until after the train had arrived at Texarkana and they had left the station. They said they opened the vestibule doors as they approached Texarkana in accordance with their custom in order to enable passengers to alight as soon as the train stopped.

The train porter corroborated the testimony of the conductor and auditor. He denied that he told the plaintiff to leave the train and denied that he had any knowledge that he had done so until after he was injured.

Other witnesses who lived along the right-of-way in Texarkana testified for the railroad company and said that they saw the plaintiff standing on the lower step of the coach as if he were preparing to jump off the train. They testified that the vestibule doors were open on both sides and that they could not see anyone else on the step or near it.

The jury returned a verdict for the plaintiff and the defendant has appealed.

Judgment reversed and cause remanded.

E. B Kinsworthy and R. E. Wiley, for appellant.

1. It was error to refuse defendant's requests for instructions Nos. 11, 12 and 13. A mere threat to have a passenger arrested for alleged misdemeanor would not justify a passenger in exposing himself to obvious danger. The threat is not the proximate cause. 80 S.W. 121; 8 Am. St. 497; 57 Mo.App. 147; 14 L. R. A. 613; 30 S.W. 170; 55 Ark. 248; 57 Am. Rep. 114. It was negligence per se to alight from a train running from twelve to eighteen miles per hour. 58 Ark. 397; 45 Id. 256; 11 S.W. 212; 99 Id. 248; 83 F 58; 37 L. R. A. (N. S.) 43 and note. There must be well grounded or reasonable apprehension of immediate impending danger. 55 Ark. 248-255; 14 L. R. A. 613; 37 L. R. A. (N. S.) 758, note; 80 S.W. 121; 67 Ark. 209; 1 Stark (Ky.) 493; 13 Pet. 181; 1 S.W. 493.

Plaintiff's instruction No. 1 was error. 80 S.W. 121, 123. There was no evidence of violence on part of the auditor.

3. No negligence was shown on part of defendant. 11 S.W. 212. Plaintiff was guilty of the only negligence. 20 L. R. A. (N S.) 1123; 30 S.W. 170; 1 S.W. 493; 100 P. 641; 62 Am. Dec. 325. A verdict should have been directed for defendant.

4. There was reversible error in the argument of counsel. 87 Mo. 74; 71 Ark. 427; 65 Id. 619-626; 70 Id. 305.

J. M. Carter, for appellee.

1. There was nothing appellant was entitled to have said to the jury in the requests asked that was not given in the instructions for appellee, or in other instructions for appellant.

2. There is no error in instruction 1 for appellee and the testimony fully supports the verdict. 118 Ark. 39.

3. No prejudice resulted from the remarks of counsel. But if the remark was prejudicial it was invited error. Besides the emphatic rebuke by the court and the withdrawal of the statement cured any prejudice.

OPINION

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

(1) Counsel for the defendant assigns as error the action of the court in refusing to give instruction No. 13. The instruction is as follows:

"If you believe plaintiff jumped from the moving train because defendant's train operatives threatened to have him arrested when he got to Texarkana, and further believe that the train was at the time he jumped off, going too fast for an ordinary prudent person to alight therefrom, in safety, your verdict should be for the defendant."

We think the court should have given the instruction. Unless the danger of alighting from a moving train is obvious, a passenger will be justified in relying upon the direction of those in charge of the train to do so, to the extent that he will not be guilty of contributory negligence as a matter of law.

It is equally well settled that some force or threat of bodily harm or effort to eject a passenger must have been used before a passenger is justified in attempting to alight from a rapidly moving train. In the case of Little Rock & Ft. Smith Ry. Co. v. Atkins, 46 Ark. 423, the court said:

"Whether it was culpable or excusable, depends on the rapidity of the motion, the fact whether it is day or night, the distance from the car to...