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

• Decision Date: 23 May 1910
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HARTUNG
• Court: Arkansas Supreme Court

128 S.W. 1025

95 Ark. 220

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

Supreme Court of Arkansas

May 23, 1910

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, P. R. Andrews and Jas. H Stevenson, for appellant.

The evidence does not sustain the verdict. 101 Mo.App. 52. A passenger riding on a freight train assumes all the risks of damages incident thereto. 87 Ark. 109; 76 Ark. 520; 83 Ark. 22. And the company is bound to exercise only the highest degree of care. 4 Elliott on Rds., § 1629; Ark. S.W. Ry. v. Wingfield, 94 Ark. 75; 90 Ark. 494. The passenger assumes the risk of the increased danger. 195 Mo. 104; 165 Mo. 612; 144 Ill. 261; 84 Mo.App. 498. In instructing the jury, it is error for the court to assume a fact in issue as proved. 24 Ark. 540. Every instruction should be hypothetical. 14 Ark. 520; 31 Ark. 684.

It is error to point out what particular inference may be drawn from the facts in proof (49 Ark. 147), or to tell them what weight should be given to the evidence. 23 Ark. 115; 58 Ark. 108; 37 Ark. 580; 45 A. 161; 88 Ark. 7; 82 Vt. 42; 71 A. 836; 118 S.W. 612; 115 S.W. 85; Id. 615; 14 L. R. A. (N. S.) 1118. It is error to submit to the jury an issue upon which there is no evidence. 80 Ark. 260; 89 Ark. 147. The verdict is excessive. 87 Ark. 109.

J. M. Jackson and Bevens & Mundt, for appellee.

Carriers of passengers are held responsible for the slightest negligence. 55 Ark. 254; 34 Ark. 625; 60 Ark. 556; 90 Ark. 498; 76 Ark. 520; 83 Ark. 22; 87 Ark. 109; 57 Ark. 418; 87 Ark. 602. All grounds of objection not specified are waived. 87 Ark. 101; 65 Ark. 371; 30 Ala. 363. Appellant's general objection to plaintiff's fourth instruction was not sufficient. 73 Ark. 531; Id. 595; 65 Ark. 255; 87 Ark. 607. Standing is not, under all circumstances, negligent. 79 Ark. 337; 83 Ark. 25; 85 Ark. 503; 87 Ark. 572; Id. 109; Id. 101. Appellant cannot complain of an error in an instruction when the same error was in an instruction given at its request. 88 Ark. 175; 69 Ark. 145; 67 Ark. 539; 75 Ark. 198; 88 Ark. 146; 87 Ark. 399.

OPINION

FRAUENTHAL, J.

This was an action instituted by Mrs. Grace Hartung, the plaintiff below, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages on account of personal injuries which she alleged she sustained while a passenger upon one of defendant's trains. The defendant ran a mixed train from Watson to Helena, two stations upon its line of railroad, in which it carried passengers and freight. The testimony on the part of the plaintiff tended to prove that she had paid her fare, and was entering defendant's train as a passenger at Watson for Helena.

In the train were two passenger coaches, and some freight cars were being switched for the purpose of putting them in the train. The train was preparing to leave, and passengers were entering the train. The plaintiff was accompanied by her baby, which was in the arms of her husband as she first entered the coach. She deposited some bundles upon the seat and then returned at once to the platform of the coach to take the baby from her husband. As she was thus standing on the coach platform, the engine backed three flat cars loaded with timber against the passenger coach with great and unnecessary force and violence, so that, as one of the witnesses testified, it almost lifted the end of the coach off the track. By the great jar and jolt the plaintiff was thrown across the coach platform on which she was standing and against the brake beam and guard rail of the next car, and thereby she was severely injured.

Upon the trial of the case the jury returned a verdict in favor of the plaintiff for $ 2,500; and from the judgment entered thereon the defendant has appealed to this court.

It is urged by counsel for defendant that, inasmuch as this was a mixed train, the plaintiff was guilty of negligence which contributed to the injury by going on the coach platform after entering the coach; and that on this account she is not entitled to recover, as a matter of law. But the fact that this was a mixed train did not alter or diminish the duty, which was required of defendant as a carrier, to stop its train for such a reasonable time as would permit passengers to go on board with safety. Where the carrier accepts passengers on such mixed trains, the same rules of law will apply to it for the exercise of care in protecting its passengers from injury as apply to it when receiving them on regular passenger trains. In the case of St. Louis, Iron Mountain & Southern Railway Company v. Brabbzson, 87 Ark. 109, 112 S.W. 222, it is said: "It is well settled that, though a passenger riding on a freight train must be deemed to have assumed all the risks incident to travel on such trains, yet, where the railway company undertakes the carriage of passengers on freight trains, it owes to such passengers the same high degree of care to protect them from injury as if they were on passenger trains." Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22, 102 S.W. 387; Arkansas Central Railroad Co. v. Janson, 90 Ark. 494, 119 S.W. 648; Arkansas S.W. Ry. Co. v. Wingfield, 94 Ark. 75, 126 S.W. 76.

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 on board the train. 2 Hutchinson, Carriers (3d Ed.), § 1111; 6 Cyc. 613.

In the case at bar the plaintiff was accompanied by her infant child, and she had come to the coach platform to take it from the arms of the father, who was standing on the depot platform. Other passengers were at the time entering the train, and all of them had not entered when the injury occurred. It became a question for the jury to say under the testimony in the case whether the plaintiff went to the car platform without unreasonable delay, and whether she remained on the platform a reasonable time to get her child. If she acted with reasonable diligence to do this, then it cannot be said as a matter of law that she was guilty of contributory negligence which would defeat her right to recover.

The court gave a number of instructions to the jury, both at the request of the plaintiff and of the defendant. These instructions fully told the jury that the plaintiff assumed all the ordinary risks and hazards that were incident to the travel on a mixed train, and properly declared to them the care that the law required the plaintiff to exercise as a passenger on such train. Amongst other instructions it gave the following at the request of plaintiff:

"3. You are instructed that railroad companies are required in the carriage of passengers to use the utmost care and foresight, and are held responsible for even a small degree of negligence causing an injury to a passenger, and are required to exercise the highest degree of a practicable care, diligence and skill in the operation of their trains to prevent injury to passengers."

It is urged that the court erred in giving this instruction because it was not applicable to the carrier of passengers on a mixed train. But we do not think this contention is correct. The duty of a carrier of passengers on a freight or mixed train is thus stated in the case of St. Louis Southwestern Ry. Co. v. Cobb, 89 Ark. 82, 115 S.W. 939: "The passenger assumes the risks and hazards that are incident to the operation of a freight train; but the general duty of the carrier to use the utmost care for the safety of the passengers is the same. Freight trains and passenger trains are operated differently, but a freight train carrying passengers cannot be operated carelessly without subjecting the company to liability, any more than a passenger train. * * * In the operation of a freight train the operatives can no more overlook the due care of their passengers than can the operatives of a passenger train." See also Rodgers v. Choctaw, O. & G. Rd. Co., 76 Ark. 520, 89 S.W. 468; Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22; St. Louis, I. M. & S. Ry. Co. v. Brabbzson, 87 Ark. 109, 112 S.W. 222; Arkansas Central Rd. Co. v. Janson, 90 Ark. 494, 119 S.W. 648.

If there was any defect in the verbiage of the instruction, the defendant should have called the court's attention thereto by a specific objection, so that it could have been corrected in that particular. St. Louis, Iron Mountain & S. Ry. Co. v. Richardson, 87 Ark. 602, 113 S.W. 794.

It is urged that the court erred in giving the following instruction: "4. You are instructed that a railway company operating a mixed train which carries passengers and which has drawn up to a station for the purpose of receiving passengers is bound to anticipate the presence of passengers aboard the passenger car and to exercise care not to injure them."

Under the...