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

• Decision Date: 09 November 1908
• Citation: 114 S.W. 230,88 Ark. 12
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. FAMBRO
• Court: Arkansas Supreme Court

114 S.W. 230

88 Ark. 12

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

Supreme Court of Arkansas

November 9, 1908

[Copyrighted Material Omitted]

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

STATEMENT BY THE COURT.

Miss Gussie Fambro and Miss Florence Harkrider, two young ladies residing in Center, Texas, started to St. Louis. They reached Texarkana between eight and nine o'clock on the 14th of August, 1907, and went to the ticket agent of the St. Louis Iron Mountain & Southern Railway Company, and asked what time a train would leave for St. Louis, and were told that a train then standing upon the track would leave in about five minutes (the train scheduled to leave at nine o'clock) for St. Louis. They asked if they had time to get tickets and have their trunks checked, and were told that they had. They then purchased tickets for St. Louis, and one of them waited for change and took charge of their grips while the other went to the baggage room and checked their trunks. They met in front of the door of the waiting room, and together went immediately to the Pullman car of the train indicated. There was no trainman at the entrance of the car to assist passengers on the train or to answer inquiries as to where the train went. They boarded it. One of them reached the vestibule, and the other was on the step immediately behind her, and there was a man standing in the vestibule whom they took to be a brakeman. Miss Fambro says he had on a uniform and train cap, and that she took him to be a brakeman, and asked him if that was the train going to St. Louis, and he said "No," and she asked him a second time if it was the train to St. Louis, and he again replied "No;" and she said she had better get off, and he said "Yes," she had better get off. Miss Harkrider says that the trainman in the vestibule of whom they made inquiries was not a Pullman porter. That he was a trainman and wore a uniform cap.

Immediately upon being informed that that train was not the St. Louis train, they alighted from it, and in doing so fell, and both were injured. They said that they did not know that the train was moving when they attempted to alight therefrom, and that they got off as carefully as they could. The testimony of all the witnesses is that the train was then moving out of the station very slowly. The train had gone four or five car lengths when they fell.

Miss Fambro says that one arm and shoulder were badly skinned, her hip was bruised, and her knee bruised and sprained, and the leaders in her neck were strained, and she was very sore and suffered much pain as the result of the fall from the train. The soreness lasted a week or ten days, and it took the bruised places two or three weeks to heal. She suffered a mental shock and was badly frightened. She expended $ 5 for medicines, and was treated by the company's physician at Texarkana and St. Louis.

Miss Harkrider says her head was severely hurt by the fall, that she was knocked blind by the force of it, and it was a great nervous shock to her and prevented her from sleeping for several days; her body was bruised and her muscles sprained and she suffered from this for a month or more. She had a severe headache for a week, and then had frequent headaches for four weeks or more. She was also treated by the company's physicians at Texarkana and St. Louis.

The facts in regard to the train were these: The train which they boarded went only to Little Rock, leaving Texarkana at nine o'clock P. M., and was due to reach Little Rock at 2:10 A. M.; and another train left Little Rock at 3:40 A. M. for St. Louis. The next train which would have left Texarkana going direct to St. Louis was at 4:05 the next morning. Passengers were in the habit of taking this nine o'clock train for St. Louis and making the change at Little Rock. These ladies brought suit against the railroad company for the personal injuries received. The suits were consolidated and tried together, and they testified as above outlined.

Defendant's testimony tended to prove these facts: That the train was in motion when the young ladies boarded it, and that they hastily and carelessly jumped from it; that it was a Pullman porter, and not an employee of the railroad, who told them that the train was not for St. Louis. The defendant also introduced the testimony of a depot policeman, who said that they asked him if that was the train to St. Louis, and he told them that would be the train, and they could change at Little Rock. They denied ever seeing this man or receiving this information from him or any one else.

The court gave the following instructions:

"1. The court instructs the jury that if you find from a preponderance of the evidence that plaintiff applied to the ticket agent of the defendant company, as alleged in her complaint, for a ticket from Texarkana to St. Louis; that such a ticket was sold to her by such agent and paid for by her, and that at the time of the purchase of the said ticket the said agent advised plaintiff that her train was then at the depot, and that she would have time to take passage on it, and if you further find from a preponderance of the evidence that the plaintiff, in the exercise of ordinary diligence, proceeded to the train so pointed out to her by said ticket agent, that the door of said train was open, and that plaintiff entered said train for the purpose of taking passage thereon for St. Louis, then you are instructed that plaintiff was a passenger.

"2. The court instructs the jury that if you find from a preponderance of the evidence that the plaintiff was a passenger, and that she was injured, and that such injuries were caused by a moving train of the defendant, then you are instructed that this is prima facie proof of negligence on the part of said company.

"3. If you find from a preponderance of the evidence that in obedience to the directions of defendant's ticket agent the plaintiff entered the said train for the purpose of taking passage thereon to St. Louis, and that while in the vestibule thereof she was advised by one of the defendant's trainmen in charge of said train that said train was not a St. Louis train and was ordered or directed by said trainmen to get off said train, she had a right to rely upon such advice or direction, provided she took no more risk in getting off the train than a prudent person would have taken under the same circumstances. And if you further find from a preponderance of the evidence that while in the exercise of ordinary care plaintiff was injured in attempting to alight from said train under such advice of the trainmen, and plaintiff received injuries, then she is entitled to recover.

"4. If you should find from a preponderance of the evidence that plaintiff was a passenger on said train, as defined in these instructions, then you are instructed that it became and was the duty of the defendant company to exercise for her safety the highest degree of skill, care and diligence which a reasonably prudent person under like circumstances would exercise and which is reasonably consistent with the mode of conveyance and the practical operation of its trains, and for any omission of these duties whereby injury resulted to plaintiff the defendant would be liable, unless you should find that such injuries were caused or contributed to by the negligence of the plaintiff.

"5. If you believe from the evidence that the plaintiff was injured by reason of the negligence of the defendant company, a recovery cannot be defeated on the ground of contributory negligence, unless it appear from the evidence that the plaintiff herself failed in the exercise of ordinary prudence, and that such failure so contributed to the injury that it would not have occurred if she had been without fault. Contributory negligence will not be presumed, but must be proved by a preponderance of the evidence."

Instructions numbered 6 and 6 1/2 were upon the measure of damages, and need not be set out here.

On behalf of the defendant the court gave six instructions. It is not necessary to set them out, as they presented the defendant's side of the controversy in the way in which the defendant desired it presented; and the court refused, seven instructions which were requested on behalf of the defendant.

Miss Fambro recovered judgment for $ 505, and Miss Harkrider for $ 500, and the railroad company has appealed.

Judgment affirmed.

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

1. The court's second instruction errs in telling the jury that if they found from the evidence that the injuries were caused by a moving train this was prima facie proof of negligence of the company. 70 Ark. 481; 85 Ark. 117; 73 Ark. 554.

2. Instruction No. 8 requested by appellant should have been given. If the negligence of appellees contributed to their injuries, they cannot recover, even though appellant's employees were negligent at the same time. Moreover, it is negligence per se to attempt to get off a moving car. 59 A. 1007; 37 Ark. 526; 46 Ark. 423.

3. The company was not bound to keep watch to prevent persons from attempting to get off its cars while in motion, and a failure to do so was not negligence. The 10th instruction requested should have been given.

4. The gravamen of the case was not the getting on the wrong train even if appellees were directed thereto, because, at last, the testimony shows that they were not misdirected. The...