St. Louis, Iron Mountain & Southern Railway Co. v. Gilbreath
| Decision Date | 26 October 1908 |
| Citation | 113 S.W. 200,87 Ark. 572 |
| Parties | ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GILBREATH |
| Court | Arkansas Supreme Court |
Appeal from Franklin Circuit Court; Jeptha H. Evans, Judge affirmed.
Judgment affirmed.
Lovick P. Miles, for appellant.
The court erred in giving and refusing instructions. No one of the crew knew of the presence of appellee in the caboose at the time of the impact. He was probably standing up at the time, thus contributing to his injury. 71 Ark. 590; 83 Id. 22; 87 Ark. 109; 83 Ark. 25.
Sam R Chew, for appellee.
Appellee was a passenger, and the company owed him the highest degree of care for his safety, and is responsible for the slightest negligence. 40 Ark. 298; 51 Id. 459. Being on a local freight, he necessarily assumed the increased risk incident to the usual operation of such trains, yet he did not assume any risk growing out of careless or negligent handling of trains or cars. 76 Ark. 520.
Appellee boarded at Ozark, Arkansas, the caboose of a local freight train, which carried passengers, for the purpose of taking passage to Altus, the next station on appellant's road. When he entered the caboose, it was standing at the station, but was soon pulled down to the east end of the yards and uncoupled from the train while switching was being done. A car was blocked or kicked in on the track where the caboose was standing and struck it with such force that appellee was thrown down and received serious injuries to his person, for which he sues to recover damages. He testified that when he entered the caboose he sat down on one of the stationary seats running lengthwise of the car, and remained seated until the violent impact of the cars threw him off the seat to the floor. It threw him a distance of six or eight feet and severely bruised his head, shoulder and hip on the left side of his body. He testified also that the cars came together with great and unusual force.
Appellant proved that a printed notice was posted in the caboose warning passengers of the danger of standing up while switching was being done. The conductor and one of the brakemen testified that appellant stated to the former immediately after the accident that he was standing up in the caboose when the shock came and he was thrown down. He denied having made this statement. The evidence tends to establish the fact that the conductor knew that appellee had entered the caboose as a passenger, and was in there when the other car was backed or kicked against it with extraordinary violence. But, whether he actually knew of appellee's presence or not, he was operating a train which carried passengers, the caboose had just been drawn up to a station for the purpose of receiving passengers, and he as well as all of the other trainmen were bound to anticipate the presence of passengers aboard the caboose and to exercise care not to injure them. St. Louis, Iron Mountain & Southern Railway Company v. Harmon, 85 Ark. 503, 109 S.W. 295.
The court refused to instruct the jury, at appellant's request, that "if the plaintiff was standing up at the time the cars came together, then, in the absence of any...
To continue reading
Request your trial