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

• Decision Date: 24 November 1913
• Citation: 161 S.W. 148,110 Ark. 232
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GREEN
• Court: Arkansas Supreme Court

161 S.W. 148

110 Ark. 232

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

Supreme Court of Arkansas

November 24, 1913

Appeal from White Circuit Court; Eugene Lankford, Judge; affirmed.

Judgment affirmed.

E. B Kinsworthy, P. R. Andrews and T. D. Crawford, for appellant.

1. The complaint does not allege that the train was not held a reasonable length of time, and there is no testimony to show that it was not held a sufficient time to afford passengers an opportunity to get aboard. Instruction 2 was therefore abstract and misleading.

2. The fifth instruction was also erroneous. A claim agent has nothing to do with the running of a train and in this case had no more authority to advise or direct appellee what to do than any other passenger had. 63 N.Y. 556; 1 Elliott Railroads, § 214; 65 Ark. 144; 52 Ark. 78; 77 Ark. 606; 97 Ark. 24; 106 Ark. 109; 39 F. 188; 36 F. 879; 108 N.C. 34; 80 Mo. 220.

3. The court should have directed a verdict for the defendant. Appellee did not apply to purchase a ticket at a proper time. She was not a passenger, and is not entitled to recover as such. 128 Mo. 64; 24 L. R. A. 521; 168 Ill. 115; 61 Am. St 68; 4 Am. & Eng. Rd. Cas. 688; Patterson, Railway Acc. Law, § 214; 124 N.C. 123; 45 L. R. A. 163; 4 L. R. A. (N. S.) 254; 78 Md. 409.

S. Brundidge, for appellee.

1. Under the testimony the second instruction was neither abstract nor misleading. The effect of it was to instruct the jury that if the defendant failed to hold its train a reasonable length of time under the circumstances, then defendant would be liable unless plaintiff was guilty of contributory negligence. If the complaint fails to allege that the train was not held a sufficient time, it will be treated as amended to conform to the proof introduced without objection. 98 Ark. 315; 85 Ark. 217; 84 Ark. 37.

2. The fifth instruction is correct. The party to whom appellee applied for a ticket, who told her that he could not sell her a ticket and directed her to go and get on the train, was in the ticket office where only employees were allowed to be, and acted within the apparent scope of his authority. The company is bound by his acts and the instruction was properly given. 96 Ark. 456.

3. Appellant was not entitled to a peremptory instruction. Appellee had the right to board the train, pay the usual fare and travel without a ticket. Kirby's Dig., § 6613. She was a passenger within the meaning of the law. 67 Ark. 47; 124 N.C. 123, 32 S.E. 308, 45 L. R. A. 163; 71 S.W.516; 103 Ark. 335; 217 Ill. 605, 75 N.E. 520; 118 Ill.App. 226; 100 Me. 79, 60 A. 710.

The question of plaintiff's negligence in attempting to board the moving train was one of fact which the jury has settled in her favor. It was not negligence per se to attempt to board it while moving. Hutchinson on Carriers, § 1182; 95 Ark. 223; 101 Ark. 191; 73 Ark. 551; 88 Ark. 13; 49 Ark. 183.

OPINION

MCCULLOCH, C. J.

The plaintiff, Mrs. Hazel Green, lived at Kensett, Arkansas, a small town on defendant's line of railroad, and went to the station one day to take passage on a regular passenger train, and, in attempting to board the train after it was put in motion to leave the station, she was thrown down and received personal injuries, compensation for which she seeks to recover in this action.

Her contention is that she went to the station about thirty minutes before the train was due according to schedule, and applied for a ticket but failed to get one, and had no opportunity to purchase a ticket; and when the train rolled in she offered to board the train but was refused admittance by the trainman standing at the steps of the coach, and was directed to go back to the ticket office for a ticket; that some one in charge of the ticket office told her to go and get on the train; and that she attempted to board the train as it moved out of the station and fell and received personal injuries.

He testimony tends to support that contention. Her statement, as abstracted here by defendant's counsel, is as follows:

"I went to the depot at Kensett; I got there just as the train pulled in; I tried to buy a ticket at the ticket office, but it was closed; I went back to get on the train, and the auditor said, 'Ticket, please;' I said, 'I am going to Judsonia.' He said, 'Let me see your ticket.' I said, 'I have no ticket.' He said, 'You can not board the train without a ticket.' I said, 'The ticket office is closed.' He said, 'Go back and get a ticket.' He said I would have plenty of time to go and buy a ticket, and I went back to get a ticket; I went to the colored waiting room, and some one directed me around to the other window, and I rapped on the window there. A man was in there, and I said, 'I want a ticket to Judsonia.' He said, 'I can not sell you a ticket, ' and for me to go on and get on the train. I went outside of the depot, and had just taken a few steps when the conductor or some of the employees hallooed, 'All aboard,' and I ran. The train had started very slowly; two employees of the railroad were standing on the rear platform of the coach, and one of them said, 'Get on, and I will help you.' I reached up with my right hand, and extended my left hand to the man up there; I caught hold with my right hand to the rail and reached for him with my left hand; the train made a bump; it had not gone far, and was moving slowly, and as I went to fall he reached for me, but he did so too late, and he only caught my purse as it flew up. I fell on the track, and the rail struck me on the back of the neck."

She testified further as to the extent of her injuries, but as there is no contention that the verdict is excessive her testimony on that point need not be stated.

The testimony adduced by the defendant tends to establish an altogether different state of the case, for, if accepted as true, it shows that the plaintiff had an opportunity to buy a ticket if she had come to the station in time, and that she failed to do that but came up as the train was in motion leaving the station, and negligently attempted to board it. The agents in charge of the ticket office testified that they kept the office open according to the rules of the company until the train rolled in, and that they were both compelled then to go out and look after the baggage.

The agent or employee whom plaintiff claims stood on the rear platform and told her to get on and offered his assistance, was the claim agent of defendant, who was a passenger on the train that day. He testified that he was standing on the rear platform, and when he saw plaintiff running he remarked to others standing near that a lady was about to try to get on, and that as she attempted to climb aboard he offered assistance, but that she fell in the attempt.

It is contended on behalf of defendant that the evidence is not sufficient to sustain the verdict, and in support of that view it is argued that plaintiff was not a passenger and that the servants of the company did not owe her any duty, save the negative one of doing nothing to injure her while she was attempting to board the train.

That contention is not a sound one, for under the statutes of this State a person who goes to the station of a railway company for the purpose of becoming a passenger, but is given no opportunity to purchase a ticket, has a right to board the train as a passenger without a ticket. St. Louis & S. F. Rd. Co. v. Blythe, 94 Ark. 153, 126 S.W. 386. In a later case we said:

"One who has no opportunity to comply with rules requiring the purchase of a ticket can not be said to have violated such rules, and can not be denied the right to ride on that ground. Where no such opportunity is given, one may become a passenger without having purchased a ticket; and when he is refused admittance to the train or is ejected from the train under such circumstances, the company is liable for the damages which result." St. Louis S.W.Ry. Co. v. Hammett, 98 Ark. 418, 136 S.W. 191.

The first question which arises in this case is whether the plaintiff was given an opportunity to purchase a ticket, and, if she was not given such opportunity, the further question arises whether or not it constituted negligence on her part to attempt to board the train while it was in motion.

The evidence is sufficient to sustain the verdict on both of those issues.

Plaintiff testified that she came to the station in plenty of time to procure a ticket, and had no opportunity to purchase one; that she attempted to board the train, and was sent back to the office for a ticket with the assurance that she would have time to do so; that she went back to the office for that purpose, but failed to get a ticket, and before she could return and reach the train it was in motion.

Now, if these facts were true, it established her right to board the train as a passenger, provided she could do so in the exercise of ordinary care for her own safety--such care as an ordinarily prudent person would exercise under the same circumstances.

Her attempt to board the moving train did not, necessarily constitute...