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

• Decision Date: 03 January 1910
• Citation: 124 S.W. 247,93 Ark. 209
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DALLAS
• Court: Arkansas Supreme Court

124 S.W. 247

93 Ark. 209

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

Supreme Court of Arkansas

January 3, 1910

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

Fred Dallas brought suit against the St. Louis, Iron Mountain & Southern Railway Company, for injuries alleged to have been received by him in being wrongfully ejected from one of its passenger trains, and in being left in an unconscious condition near the tracks of its line of railway, whereby his leg was cut off by another of defendant's trains, which passed shortly afterwards.

Fred Dallas, the plaintiff, testified substantially as follows:

On September 29, 1907, about 2 o'clock P. M., he took defendant's passenger No. 806 at El Dorado for Camden Arkansas. When the train reached Camden, he concluded to go to Malvern, Ark., and paid his passage to that place. The train auditor, upon receipt of his fare, put the usual check in his hat. When plaintiff boarded the train, he was sober, but he began drinking whisky on the way, and became drunk. When the train stopped at Walco, a station about two miles south of Malvern, he started out to look around. When he reached the steps, some one (he thinks was one of the train crew) pushed him from the steps of the coach. He says he fell backwards, and did not remember anything more until the next morning. When he recovered consciousness, he found that his leg had been cut off, but says that he does not remember any of the attendant circumstances.

Other passengers on train No. 806 on the day in question testify that they saw one of the train crew shove the plaintiff from the steps of the coach. One witness said that when the plaintiff fell the brakeman kicked him out of the way. Other witnesses testified that they saw him lying within eight or ten feet of the track, and that he was unconscious. Others say that he was unconscious, but was some distance further away.

The train crew were witnesses for the defendant, and deny that the plaintiff was kicked or shoved off of the steps of the train, or that they knew he was drunk, or was left lying near the track in an unconscious condition. The train stopped at Walco about 8 o'clock P. M., which at that season of the year was shortly after dark. The train proceeded to Malvern, about two miles distant, and while there defendant's passenger train No. 223, southbound passed it. When it arrived at Walco, two or three passengers got off, and the train started up. Just then other passengers came out of the coach, and the train was again stopped to discharge them. It had moved up about thirty (30) feet. When it made the second stop, a cry of distress was heard from the rear of the train. An investigation was made, and plaintiff was found under the rear trucks under the rear coach, with the wheels resting on his legs. He was released as quickly as possible, placed on a cot and carried to Malvern, where his leg was amputated. Walco is a station two miles south of Malvern established for the benefit of a lumber mill and its employees.

There was a trial by jury, and a verdict for the plaintiff. The defendant has appealed from the judgment rendered upon the verdict.

Judgment reversed and cause remanded.

Kinsworthy & Rhoton, Bridges, Wooldridge & Gantt, and James H Stevenson, for appellant.

1. The evidence does not sustain the verdict. No presumption of negligence arises from the mere fact of the injury, and the doctrine of res ipsa loquitur does not apply unless the accident or injury, unexplained by attendant circumstances, might as plausibly have resulted from negligence on the part of the passenger as the carrier. 75 Ark. 479, 491. In this case the passenger was sober when he boarded the train, and became drunken thereafter, and there is no showing that those employees who were in charge of the train had any notice or knowledge of his drunken condition. In such case they owed him no duty beyond that which was due to the ordinary passenger. 2 Hutchinson on Car. § 994, p. 1145; Id. § 1083, pp. 1261-2; 94 Ind. 276; 130 Mich. 666; 88 Ky. 232; 44 S.W. 648; 32 O. St. 345; 183 Pa. 638; 21 Ia. 15. Intoxication is a self-imposed disability which does not relieve one of his duty to exercise proper care to avoid danger. 71 Tex. 361; 136 Ala. 178.

2. The seventh instruction given at plaintiff's request was erroneous in stating that "the law furnishes you no measure of damages for pain and suffering. The amount to be assessed by you, if any, must be left to the sound judgment and fair discretion of the jury." Such an instruction leaves the jury at liberty to assess any amount they may see fit as damages. While there is no definite rule, there is nevertheless a "measure of damages" in such cases, and that is such an amount as is compensation for the suffering.

3. It was error to refuse to allow the witness Ellington to read to the jury the statement of the plaintiff made to him in writing and signed by said plaintiff. 31 Ark. 684.

Henry B. Means and John C. Ross, for appellee.

1. Where the ejection of a passenger who is in a drunken condition, and is at the time incapacitated to care for himself, is wrongful, and is made in an improper manner, time, place and circumstances of the passenger considered, the carrier is liable; otherwise not. 83 Ark. 6; 82 Ark. 289; 42 Ark. 321; 56 Ark. 603; Id. 51; 80 Ark. 158; 84 Ark. 241. In this case the wrongful ejection was the proximate cause of the injury. Carriers of passengers are held to the highest degree of care, and are responsible for the smallest negligence. 40 Ark. 298; 51 Ark. 459; 2 Hutchinson on Carriers, § 1083, pp. 1260, 1261-2; Id. § 994, p. 1144.

Where the ejection is rightful, made in a proper manner and at a proper time and place, vet if there is want of proper care in view of the passenger's condition and the place where he is left, the carrier may be held liable for his subsequent injury. 108 Ala. 62, 67; 60 Ala. 621; 27 Conn. 393; 3 O. St. 172; 58 Ia. 348; 37 Cal. 400; 97 Ky. 330; 33 Kan. 543; 3 Wood on Railroads, § § 363-4; 1 Am. & Eng. Enc. of L. 748. See also 120 Ind. 470; 118 Mass. 251; 32 O. St. 345; 21 Ia. 15; 52 Ia. 533; 81 Ky. 624.

2. The refusal to allow the witness Ellington to read appellee's statement to the jury was proper. He was permitted to refer to it in testifying, and it was unnecessary to read the whole of it to the jury. The request was to read the whole statement, and not any alleged contradictory part thereof, which was improper. 68 Ark. 587. Moreover, appellant did not bring itself within the rule requiring a specific request to read an alleged contradictory part of the statement. Id.

OPINION

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

1. It is earnestly insisted by counsel for defendant that there is not sufficient evidence to support the verdict. The duty of the carrier to a drunk passenger and its liability for the neglect of it is stated by Mr. Hutchinson as follows:

"And this rule is true whether the attendant danger arises from the natural infirmity of the person or was self-imposed. Thus, if a person on a train is so intoxicated as to render him unconscious of danger and unable to appreciate his position, surroundings and perils and his duty to avoid them, or he does not possess the power of locomotion, and is put off the train by a conductor on account of his misconduct, and the place where he is put off and left is dangerous to one in his condition, and these facts are known to the conductor, he would be guilty of recklessness and wanton negligence, rendering the company in whose employment he is liable for damages resulting from his negligence, although the person ejected and injured might have been legally ejected in a proper manner and at a proper place." 2 Hutch. Carr., § 1083, p. 1260.

"Upon like principles, the law would not justify a conductor in putting off a passenger at a time and place and under conditions and circumstances which would expose him unnecessarily to great peril of life or bodily harm, and this, too, whether the danger arose from the natural infirmity of the person or was self-imposed. If the conductor did not know of the infirmity of the person and the peril attending the ejection, there would be no liability arising from the exercise of the right and performance of the duty. It is the fact of notice or knowledge of the danger on the part of the conductor under such circumstances that constitutes the act...