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

Decision Date16 November 1908
Citation114 S.W. 247,88 Ark. 225
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GLOSSUP
CourtArkansas Supreme Court

Appeal from Drew Circuit Court; Henry W. Wells, Judge; affirmed.

Judgment affirmed.

T. M Mehaffy and J. E. Williams, for appellant.

1. All the circumstances point to the fact that the train had not reached the station, and under the circumstances appellee could not reasonably conclude that it had done so. 70 Ark 264; 75 Ark. 165. And appellant could not be held responsible where the appellee, as the facts and circumstances show failed to use the ordinary sense of sight. 7 L.R.A. 323; 12 Am. & Eng. R. Cas. 165.

2. Appellee was not a passenger for this station or destination, and if he undertook to alight it was his duty to know that he was alighting in a safe place. "Where a passenger enters a railway train and pays the regular fare to be transported from one station to another, his contract does not obligate the corporation to furnish him with safe egress and ingress at any intermediate station." 11 S.W. 326; 3 Am. & Eng. R. Cas. 463; 58 Me. 184, 10 Allen 387.

3. While a passenger has the right, for convenience or necessity, to go into another car, yet, if he assumes to alight from the car for that purpose, he does so at his own risk, and especially so if he alights from a car for that purpose that is not at a station. 51 Mich. 236; 47 Am. Rep. 566.

4. The court's instruction as to the measure of damages is erroneous in assuming that the duration of appellee's injury would be for life--in assuming facts in dispute as proved. 66 Ark. 506; 74 Ark. 563; 71 Ark. 38. There was nothing in the evidence to show what the rest of his natural life would be. His life expectancy was not proved. It was also error, in this instruction, to tell the jury to assess his damages "in such sum as will compensate him" for the different items therein enumerated. 15 S.W. 504.

5. The damages assessed was excessive. 64 Tex. 463; 19 Barb. (N.Y.) 461.

R. W. Wilson and Joe T. Robinson, for appellee.

1. There is no error in the first instruction given by the court of which complaint is made. Other instructions given placed upon appellee the burden of showing that he had properly used his sense of sight and hearing. Moreover, a general objection is not sufficient. The court's attention should have been called specifically to any defect in the instruction.

2. The relation of passenger is not severed by the passenger's temporarily leaving the train at intermediate stations for business or other reasonable purposes. 148 Mass. 216; 88 Ill. 608; 73 N.Y. 606; 29 F. 268; 8 Ore. 60; 113 N.Y. 365; 1 Fetter on Car. Pass. § 234; 2 Hutchinson on Car. §§ 1012, 1165, 3 Thompson on Neg. § 2659; 19 Tex. Civ. App. 440; 23 id 415; 88 F. 455.

3. In arriving at the expectancy of life, it is admissible to introduce life tables, but they are not absolutely essential. The jury may make their own estimate of probable life from other evidence before them pertinent to the issue. 4 Elliott on Railroads § 1813 and cases cited.

4. The verdict is not excessive. The injury is shown to be permanent, the pain very severe and of long duration, the resulting deformity marked, and his disability from labor probably lifelong. The amount of damages being exclusively within the province of the jury, their finding will not be disturbed unless so manifestly excessive as to indicate passion or prejudice, or unless shocking to a fair sense of justice. 56 Ark. 594; 53 N.Y. 625; 11 S.W. 333; 38 Ia. 592; 64 Miss. 584; 18 S.E. 278; 79 Ill.App. 632.

OPINION

MCCULLOCH, J.

Appellee took passage at Dermott, Arkansas, on one of appellant's trains on the Warren branch, bound for Monticello, Arkansas, and sues to recover compensation for personal injuries alleged to have been received on account of the negligence of appellant's servants in charge of the train. The train left Dermott about six o'clock in the evening or. November 15, 1906, and the coaches were crowded with passengers who had attended the circus in Dermott that day. Just before the train reached Baxter, a station about four miles distant from Dermott, the conductor, in order to gain time for the auditor to collect all the fares before stopping at Baxter, caused the train to be halted on a bridge or trestle across Bayou Bartholomew, and appellee, who was standing on the platform of the rear coach, stepped off, receiving the severe injuries complained of in this action. He alleged in his complaint, and adduced testimony tending to prove, that the rear coach which he entered was so overcrowded that he could not obtain a seat, and that it was unlighted: that one of appellant's employees called the station of Baxter, and the train immediately came to a stop; that he thought the stop was made for the station, and, being unable to get through the coach, he attempted to alight in order to go forward to the next coach to procure a seat. He testified that when he started to alight it was dark, and he looked about but could see nothing to indicate that the train had not stopped at the station.

The evidence was sufficient to justify a finding of negligence on the part of appellant's servants in calling the station prematurely, thus inducing appellee to attempt to alight, and that he exercised due care in attempting to alight. Such a state of facts rendered appellant responsible for any injury which resulted. Memphis & Little Rock Railroad Co. v. Stringfellow, 44 Ark. 322; Railway Company v. Johnson, 59 Ark. 122, 26 S.W. 593; St. Louis, Iron M. & S. Ry. Co. v. Farr, 70 Ark. 264, 68 S.W. 243; Davis v. K. C. So. Ry. Co., 75 Ark. 165, 86 S.W. 995.

It is insisted, however, that a different rule should prevail when a passenger attempts to alight from the train at a station which is not his destination, in reliance on a premature announcement of the station. We do not think this is a sound distinction. Appellant did not cease to be a passenger by...

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