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

• Decision Date: 19 May 1913
• Citation: 157 S.W. 385,108 Ark. 292
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PLOTT
• Court: Arkansas Supreme Court

157 S.W. 385

108 Ark. 292

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

Supreme Court of Arkansas

May 19, 1913

Appeal from Franklin Circuit Court, Ozark District; Jeptha H. Evans Judge; affirmed.

Judgment affirmed.

Thos B. Pryor, for appellant.

1. The court should have directed a verdict for the defendant. 99 Ark. 252, and authorities cited; see 85 Ark. 117; 59 Ark 185.

2. It was error to charge the jury that "if plaintiff recklessly and negligently jumped off the train while in motion, and was injured thereby, plaintiff can not recover," since it places the burden upon the defendant to show that not only the plaintiff was wanting in ordinary care for her own protection, but also that she must have acted in a reckless, as well as a negligent manner.

The error in this instruction is not cured by other instructions. 93 Ark. 151; Id. 573. As to the use of the word "recklessly," see 39 Kan. 531; 114 Ala. 492; 94 F. 762; 48 Mo.App. 482.

Sam R. Chew, for appellee.

1. The injury occurred in Oklahoma. The law of that State makes it the duty of carriers of passengers to use the utmost care and diligence for the safe carriage of persons for hire, and to provide everything necessary for that purpose, and to that end must exercise a reasonable degree of care. Statutes Okla., 1893, p. 143, § 440; 87 P. 293; 89 P. 207. This rule obtains in all the States. 2 Hutchinson on Carriers (3 ed.) § 1118, and authorities cited.

2. Whether, under the circumstances, there was negligence on the part of appellee, was a question for the jury. 3 Hutchinson on Carriers (3 ed.) § 1177.

It is not negligence per se for a passenger to attempt to leave a moving train. When directed to do so by an employee of the company, the passenger may rely upon the superior knowledge of the employee. 37 Ark. 519; 54 Ark. 25; 46 Ark. 423; 49 Ark. 182; 67 Ark. 531.

3. Appellant's objections urged here against instruction 7 are without merit, because it is more favorable to appellant than to appellee.

OPINION

MCCULLOCH, C. J.

Appellee was a passenger on appellant's train from Delaware, Oklahoma, to Greenwood Junction, Oklahoma, and was injured while stepping from the train at her destination.

She testified that when the train reached Greenwood Junction, it stopped only a few moments; that the station was not called, and when she looked out of the car window, it appeared to her that it had stopped at a tie yard; that as the train moved off, she started up to the car door and asked the brakeman or porter if that was her station--Greenwood Junction, and that he told her it was, and instructed her to step off the train, assuring her that the train was going very slow, and that she could do so with safety.

Her testimony was sufficient to establish the charge of negligence on the part of the trainmen in failing to call the station so as to give a passenger an opportunity to debark from the train, and in advising her to step from the moving train. Whether or not she was guilty of negligence herself in stepping off the moving train was, under the circumstances, a question for the jury.

She was seriously injured, and the jury awarded damages, the amount of which is not claimed to be excessive.

There are numerous exceptions to rulings of the court in giving and refusing instructions. Only a few of these assignments need be mentioned.

One is that the court erred in instructing the jury that "if plaintiff recklessly and negligently jumped off the train while in motion, and was thereby injured, plaintiff can not recover."

The court gave several other instructions telling the jury that appellee could not recover if she was guilty of negligence which contributed to her injury, and on appellant's request defined contributory negligence as "doing that or omitting to do that which a reasonably prudent person would do or would not do under the same or similar circumstances." The court did not tell the jury that appellee would be entitled to recover unless she "recklessly and negligently jumped off the train while in motion," and none of the instructions extend her right to recover to that limit. On the contrary, all of the instructions, read together, clearly explained to the jury that she could not recover if her own conduct was wanting in ordinary care for her own safety. The instruction complained of is technically correct in saying that if appellee "recklessly and negligently jumped off the train while in motion," she could not recover, though it would have been incorrect to use language in the instruction which would have placed recklessness as the only limitation upon her right to recover. Recklessness means more than mere carelessness or want of ordinary care, and is too strong a...