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

• Decision Date: 31 October 1910
• Citation: 131 S.W. 692,96 Ark. 339
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HOLMES
• Court: Arkansas Supreme Court

131 S.W. 692

96 Ark. 339

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

Supreme Court of Arkansas

October 31, 1910

Appeal from Desha Circuit Court; J. Bernhardt, Special Judge affirmed.

STATEMENT OF THE COURT.

The appellee, according to the evidence of himself and other witnesses, was in the act of boarding one of appellant's combination freight and passenger trains at Watson station for the purpose of taking passage to Yoncapin. Appellee had mounted the steps, and had reached the platform, and was "fixing to go in the door of the coach" when the train made a "bump," "a big bump," "a hard coupling," a "jerk," "considerable of a jerk," an "awful hard jerk," as the witnesses for appellee variously describe it. This bump or jerk threw appellee from the platform to the ground. Appellee had under his arm a package of beef. As he fell, his arm struck the rail, and the train ran over it crushing the "lower two-thirds of his arm and hand all to pieces," so that it was necessary to amputate same. The train "was standing perfectly still" until appellee reached the platform and "got to where he was going in the door," when it started.

Appellee was attended by the surgeon for about twenty-two days. Appellee had a pint of whisky in his pocket. He did not know how many drinks he had taken the evening before his injury but he had taken only one drink--a bottle of beer--that morning, and was sober. The above are substantially the facts, as the jury might have found them in favor of appellee. Appellee sought and recovered judgment against appellant in the sum of $ 2,500. He alleged in his complaint that appellant "carelessly and negligently started its train with a sudden and violent jerk," causing the injury above described. Appellant denied the allegations, and set up that appellee did not become a passenger on its train "but that he undertook to board the train after it left the station and while it was in motion," and that appellee was thus injured through his own negligence.

The testimony of witnesses on behalf of appellant tended to prove that appellant's train stopped at Watson on the day appellee was injured some ten or fifteen minutes for passengers to get off and on; that the train had begun to move, and had gone about ninety feet before appellee attempted to get on same; that appellee waited at a saloon until the train started up, then he was seen approaching, running to catch the train. "He grabbed the grab iron with his right hand and missed it, and attempted to step up and missed the step, and fell in under there," as one of the witnesses testified.

There was testimony tending to prove that appellee at the time appeared to be under the influence of liquor.

Witnesses on behalf of appellant testified that the train did not start with a jerk, that the train was light, and that it was unnecessary that it should start up with a jerk.

The above testimony on behalf of appellant tended to prove that appellant was not negligent, and that appellee was negligent. Other facts stated in opinion.

Judgment affirmed.

W. E. Hemingway, E. B. Kinsworthy and Bridges, Wooldridge & Gantt, for appellant.

1. The mere fact that there was a jerk in starting the train was not sufficient to show negligence. It was a mixed freight and passenger train. 3 Hutchinson on Carriers, (3 ed.), § 1217; 4 Elliott on Railroads, § 1589; 44 S.W. 213; 71 Ark. 590; 82 Ark. 393; 83 Ark. 22. A carrier is required to try to protect its passengers from such dangers only as it may reasonably anticipate. 88 Ark. 12; 86 Ark. 325. It owes no duty to a belated passenger to delay the train after allowing a reasonable time to get aboard. 102 N.Y. 280; 54 Ark. 25; 87 Ark. 581; 92 Ga. 293. After such reasonable time the conductor is not required to examine to see that all intending passengers have boarded the train. 24 Am. & Eng. R Cas. (N. S.), 923, note; 6 Cyc. 613; 28 Mich. 440; 73 Ark. 548; 50 S.W. 581.

2. The testimony of Dr. McRae that he was told to take charge of plaintiff after the accident was improperly admitted. 1 Enc. of Evidence, 552; 65 Ark. 52; 78 Ark. 381; Id. 147; 89 Ark. 556; 70 Ark. 179.

3. The fourth instruction errs principally in directing the jury that, if they found certain things to be true, "then in this case you should find for the plaintiff in some amount, not exceeding $ 5,020." 58 Ark. 136; 87 Ark. 123; 69 Ill. 426; 83 Ill. 440; 174 Ill. 398.

4. The verdict is excessive.

X. O. Pindall, for appellee.

1. Starting a train with jerks and jars of unusual and unnecessary violence is held to be negligence on the part of the company. 82 Ark. 393; 83 Ark. 22.

2. If the testimony of McRae complained of was improper, the objection to it was merely technical, and the testimony was harmless. Appellant should have asked a proper instruction concerning it, or should have pointed out to the court its injurious effects; 13 Ark. 344; 94 Ark. 407; 89 Ark. 24.

3. The amount sued for was reduced by the plaintiff, without objection from defendant, before the jury were instructed. The fourth instruction was neither erroneous nor hurtful. 92 Ark. 436. Moreover, there was no error pointed out to the trial court. 124 S.W. 247; 89 Ark. 82; 66 Ark. 46; 87 Ark. 123.

OPINION

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

Witnesses for appellant testified that it was unnecessary in the proper operation of the train to start same with a jerk. Then, if the train did start with a jerk, as the witnesses for appellee testified, this was evidence of negligence on the part of appellant, and if the injury of appellee was the result of this negligence, as the evidence tended to prove, then appellant was liable. The questions of negligence and contributory negligence were properly submitted for determination by the jury and upon correct declarations of law.

This court has defined the duty of carriers to passengers on combination freight and passenger trains, and also the duty of passengers on such trains with reference to their own safety. We need not repeat here the rules applicable in such cases.

The instructions of the court were in harmony with the doctrine announced in the following cases: St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220, 128 S.W. 1025; Arkansas S. W. Ry. Co. v. Wingfield, 94 Ark. 75, 126 S.W. 76; St. Louis S.W. Ry. Co. v. Jackson, 93 Ark. 119, 124 S.W. 241; Arkansas Central Rd. Co. v. Janson, 90 Ark. 494, 119 S.W. 648; St. Louis, I. M. & S. Ry. Co. v. Cobb, 89 Ark. 82, 115 S.W. 939; St. Louis, I. M. & S. Ry. Co. v. Brabbzson, 87 Ark. 109, 112 S.W. 222; Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22, 102 S.W. 387; Rodgers v. Choctaw, O. & G. Ry. Co., 76 Ark. 520, 89 S.W. 468.

Since according to the undisputed evidence of witnesses for appellant, it was unnecessary to start this particular train with any jerk at all, the instructions at the instance of both parties submitting the question to the jury as to whether the jerk, if any, was a "sudden, violent and...