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

• Decision Date: 28 October 1912
• Citation: 150 S.W. 706,105 Ark. 269
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WRIGHT
• Court: Arkansas Supreme Court

150 S.W. 706

105 Ark. 269

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

Supreme Court of Arkansas

October 28, 1912

Appeal from Pike Circuit Court; Wm. P. Feazel, Special Judge affirmed.

STATEMENT BY THE COURT.

Appellee brought this suit against appellant to recover damages for injuries received by her while embarking on one of appellant's trains. The material facts are as follows:

On the 5th day of May, 1911, appellee purchased a ticket for herself and children from Amity to Glenwood, both being stations on appellant's line of railroad. She intended to go on what was called the log train, which was a mixed passenger and freight train. When the train pulled up to the station at Amity the conductor called out, "All aboard," and appellee immediately proceeded to get on the train. The conductor helped her on the platform with her children, and she started into the car as fast as she could go. She had her baby in her arms, and her little boy and two little girls preceded her into the car. She was back of them, urging them along as fast as possible, and just as they got in the door of the car the train started with a sudden jerk which threw appellee down. When she fell, the right side of her head and shoulder hit the upper part of the first seat in the car. She held her baby in her left arm when she fell. The seat that she struck was about ten feet from where she was when the jerk came. She had not gotten inside the car when the jerk came, but was just in the doorway. Her older little girl, who was ahead, had gotten far enough in the car to catch hold of the first seat on the left and keep herself and sister from falling. The jerk of the train knocked her little boy over as fast as he could get up. Appellee told the conductor about the injury she received. She proceeded on her journey, and as soon as she got home she examined herself and found that she had a long black bruise about four inches long on her shoulder and a bruise on her head. She testified that her shoulder looked blue for a long time afterwards, and that she has never had the use of her right arm since, and that she can not lift a bucket of water with that arm; that she had always been a stout woman, and never had had any trouble with her arm before the accident; that in November or December 1911, after the accident, her shoulder got so bad she had to send for a doctor; that it is no better now, and gives her a great deal of pain; that up to the time she sent for the doctor she treated her arm herself with liniment; that she has suffered a great deal of pain and still suffers pain that the pains are mostly in her shoulder, head and through her chest.

Doctor J. E. Baker, for the plaintiff, testified: "I examined appellee's arm and shoulder three or four months after she said she received the injury. I found at that time a place of discoloration between her shoulder blades. She seemed to be suffering considerable pain. I did not take any measurements at that time, but the injured shoulder blade was considerably to one side and flattened. It seemed that one edge was knocked down. I prescribed rubbing, massaging and liniment. Later on I took two measurements, and found that the injured shoulder was an inch and a half shorter over the shoulder blade than it is over the other shoulder blade. I think that a blow similar to the one appellee sustained would have a tendency to produce the condition she is in. I believe she is liable not to have good use of her arm. She can't bear to have it raised above a level. Such an injury would have a tendency to produce pain, which might last an indefinite time. Any severe lick on the point of the shoulder could produce a case similar to this, and it might knock the shoulder blade loose from the muscles and flatten the shoulder blade. I think that nothing but a blow of some kind could produce a similar result unless it might be possible for some kind of rheumatism to do it. I think there is an indication that her injury might be permanent."

Other facts will be stated in the opinion. The jury returned a verdict for appellee in the sum of $ 1,550, and the case is here on appeal.

Judgment affirmed.

E. B. Kinsworthy, W. V. Tompkins, R. E. Wiley and W. G. Riddick, for appellant.

George A. McConnell, for appellee.

OPINION

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

1. Counsel for appellant contend that the court erred in refusing to grant appellant's motion for continuance. The original complaint alleges that appellee received her injuries on April 5, 1911. When the case was called for trial on March 21, 1912, appellee asked the court to amend her complaint by alleging that she received her injuries on May 5, 1911. This was granted, and thereupon the appellant was given permission to change its answer to meet the amendment of the complaint. Then both parties announced ready for trial, and a jury was impanelled to try the cause. While counsel for appellee was stating her case to the jury, appellant asked leave of the court to file a motion for continuance. The motion alleged that appellant was taken by surprise when appellee amended her complaint so as to change the date on which the injury occurred from April 5, 1911, to May 5, 1911, and that it was not prepared to meet this change in the date.

The complaint should state with as much definiteness and certainty as possible the time and kind of train and the particular point where the injury occurred. This should be done in order that the railroad company might be enabled to prepare for its defense and avoid the necessity of subpoenaing an unnecessary number of witnesses and therefore possibly decrease the efficiency of the service of its trains and also to avoid unnecessary expense. So, if the motion for a continuance had been made at the time appellee was given permission to amend her complaint, the motion should have been granted. In the instant case, however, appellant did not do this. It amended its answer to meet the changed issue and elected to go to trial without asking for a continuance. As far as the record discloses, it knew as much then as it did subsequently about the necessity of having new witnesses to meet the changed condition of the pleadings. The injury occurred on a branch line of appellant's line of railway where, presumably, appellant had but few trains and train crews. The general rule is that the granting or refusing a continuance is intrusted to the judicial discretion of the trial court, and it is an abuse of that discretion only that is a ground for reversal. Having elected to go to trial under the changed condition of the pleadings and not having shown any additional grounds than that before appellant elected to go to trial, the court did not abuse its discretion in refusing to grant the continuance.

2. It is insisted by counsel for appellant that the court erred in refusing to direct a verdict for it. This was a suit by appellee to recover damages for injuries received while getting on one of appellant's trains, which carried both freight and passengers. In the case of St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220, 128 S.W. 1025, the court in discussing the duty of carriers to passengers getting on mixed trains, said:

"The carrier of passengers on mixed trains is required, like carriers on regular passenger trains, to furnish reasonably safe means of entering the car and to hold the car in a reasonably safe manner for a reasonable time to permit those who wish to enter to do so with safety. If, therefore, while the passenger is getting on the car, the train is negligently started, or so negligently handled by permitting other cars to be thrown against it with such violence that the passenger is injured, the carrier will be liable. The time that is allowed a passenger to enter a train depends to a great extent on the particular circumstances of each case and of the passenger, the physical ability of the passenger, his incumbrance with baggage and his being accompanied by those who are dependent upon him for attention may all be taken into consideration in determining whether a reasonable time has been afforded the passenger in getting...