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

• Decision Date: 29 March 1909
• Citation: 117 S.W. 1064,90 Ark. 64
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GRIMSLEY
• Court: Arkansas Supreme Court

117 S.W. 1064

90 Ark. 64

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

Supreme Court of Arkansas

March 29, 1909

Appeal from Miller Circuit Court; Jacob M. Carter, Judge; affirmed.

STATEMENT BY THE COURT.

The appellee sued appellant to recover damages for injuries received by him in falling through a seat in the passenger depot of appellant in the city of Texarkana, Arkansas. The seat had a defective bottom. Appellee alleged that he accompanied his daughter-in-law and her children to said depot for the purpose of aiding them to embark on said appellant's passenger train as passengers; that when they arrived at the depot he purchased a ticket for them and took a seat beside his daughter-in-law to wait for the train, and on account of the defective chair fell through it and was injured. Appellee alleged that appellant knew or should have known of the defective condition of the seat, and that, by reason of the negligence of appellant in failing to provide and maintain said seat in a reasonably safe condition, he had been damaged in the sum of $ 1500. He alleged how he was damaged.

The appellant answered denying all the material allegations, but did not set up contributory negligence as a defense.

The evidence on behalf of appellee tended to prove that on the 27th day of July, 1907, he went with his daughter-in-law and her two small children to appellant's depot in the city of Texarkana, for the purpose of purchasing her ticket and aiding her and the children in getting on the train. He says "After purchasing her ticket, I handed her the ticket and then monkeyed with the children a little, and then turned around and sat down on the seat right beside her. I fell through the seat, and it had my feet right up in my face. The seat was thin bottom and perforated: It was fastened with tacks, but was not fastened at all where I sat down. The front side was not tacked. I examined it, and could put my hand on it and mash it in, and when I took my hand off it would come back up again." The appellee then tells that he was hurt in his back, that he was in bed five days, and that for three weeks he could not put on his shoes unaided. He suffered much pain. Another witness testified that he saw the chair in which appellant was injured about one week before, that he started to sit down in the chair and noticed that the tacks were out of it. The chair was in plain sight in the middle of the room. The appellee was a farmer, had done most of his work on the farm to the time of his injury. He had a crop of corn and cotton planted. He had to hire help to have his crop gathered.

The court at the request of appellee gave the following instructions:

"2. You are instructed that it was the duty of the defendant to keep the seats in the waiting room in reasonably safe condition for the use of passengers who came to the depot for the purpose of taking the train or for those who came as escorts with them to assist them in taking the train. If you find that the plaintiff came to the depot with his daughter-in-law and her child for the purpose of aiding them in taking the train as passengers, and when in said depot he was injured in his person by reason of acts complained of in his complaint, then you will inquire whether said seat was in a reasonably safe condition when plaintiff sat down upon it. If you find that it was not in a reasonably safe condition when he sat down upon it, then you will inquire whether such condition was an act of negligence on the part of the defendant, and was such an act of negligence as that some injury might have been foreseen or reasonably anticipated as the probable result of such an act of negligence. If you find the foregoing facts in the affirmative, then your verdict should be for the plaintiff.

"3. If you find for the plaintiff, then in assessing his damages you should take into consideration his earning capacity before and after the injury was received as may be shown by the proof, his physical condition before and after the injury and the nature and character of the injury he received whether it be permanent or temporary in its nature, and find for him such sum as will fairly and reasonably compensate him therefor. And you are further instructed to include therein fair and reasonable compensation for any physical pain and suffering he may have undergone or may undergo in the future as a result thereof, if any."

The court gave among others the following at the request of appellant:

"The burden of the proof is on the plaintiff to show by a preponderance or a greater weight of evidence that plaintiff fell through the chair as alleged in the complaint, that the chair was defective, and that its defective condition was known to defendant, or that defendant by ordinary care should have known of its condition.

"10. Although the jury may believe that the seat in question was defective, yet if such defect was plain and plainly to be seen, and plaintiff discovered this defect or failed to use ordinary care in that direction, he can not recover."

And refused the following:

"7. The jury are instructed that it was the duty of the plaintiff, before attempting to sit down on the seat or chair upon which he attempted to sit, to have looked at the same and if he failed to do so, and if the defect in the chair or seat was such as was plainly obvious and could have been seen or detected by simply looking at it, then he is guilty of contributory negligence, and cannot recover in this case."

The verdict was in favor of appellee in the sum of $ 450. Judgment was entered against appellant for that amount, and this appeal was taken.

Affirmed.

Lewis Rhoton and E. B. Kinsworthy, for appellant.

1. Appellee was guilty of contributory negligence by his own confession, and cannot recover. 63 Ark. 427; 61 Id. 555; 76 Id. 13; 36 Id. 377; 84 Id. 270. Appellant's 7th instruction should have been given.

2. The 2d instruction makes appellant a guarantor or insurer of its premises against all injuries. 48 Ark. 491; Thompson on Neg. § 2680.

3. Appellee was not a passenger and did not intend to become one, but a mere licensee. Thompson on Neg. § 2687; 48 Ark. 491; 45 Id. 246; 29 Ohio 264; Thompson Car. of Pass. pp. 104-5; 71 Ill. 500; 59 Pa.St. 129; 29 Ohio St. 364. The only duty of appellant was to use ordinary care to keep its premises free from known damages. 25 Mich. 1; 44 Ga. 251; 57 Me. 357; 78 Ind. 323; 86 Pa.St. 74; 120 Mass. 306; 48 Vt. 127.

4. It was error to allow appellee to be recalled as a witness after the evidence was closed. Besides, his evidence was incompetent. Thompson on Negligence, §§ 7294-8.

Joe E. Cook, for appellee.

1. No abuse of discretion by the court in allowing appellee to be recalled. 83 Ark. 110.

2. The 7th instruction was properly refused. It is not a correct statement of the law. 65 Ark. 259; 85 Id. 481. Appellee was not guilty of contributory negligence merely because he did not look at or examine the chair before he sat in it. 69 Ark. 496; 92 F. 846; 163 U.S. 353; 4 A. & E. Enc. Law, 76 note 2; 74 Ill.App. 387, 396; 36 S.W. 319; 79 Wisc. 404; 155 Mass. 190; 85 Ark. 481. But instruction 10 covers the law on this point.

3. The duty of carriers to passengers to keep its platform and premises in reasonably safe condition extends to those who are there to meet or part with incoming or outgoing passengers. 77 Ala. 448; 11 Ind.App. 192; 37 N.E. 954; 36 Kans. 769; 51 Mich. 601; 59 Mo. 27; 59 Pa.St. 129; 57 So. Car. 332; 64 Tex. 251; 51 S.W. 653.

4. A person in a depot by invitation need not, as a rule, look out for danger, like one crossing or going on the tracks. 55 Ark. 428; 48 Id. 493; 65 Id. 259; 69 Id. 498; 65 Id. 255.

OPINION

WOOD, J., ...