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

• Decision Date: 06 July 1908
• Citation: 112 S.W. 222,87 Ark. 109
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BRABBZSON
• Court: Arkansas Supreme Court

112 S.W. 222

87 Ark. 109

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

Supreme Court of Arkansas

July 6, 1908

Appeal from Jackson Circuit Court; Frederick D. Fulkerson, Judge affirmed with remittitur.

STATEMENT BY THE COURT.

This is an action instituted by an infant, suing by next friend against the railway company for damages for personal injuries received while she was a passenger on a local freight train which carried passengers regularly. She was a passenger en route from Newport, Arkansas, to Tuckerman, and received the alleged injuries complained of when she was about to debark from the train at her destination. It is alleged in the complaint that "upon the arrival of said train at Tuckerman, the same was stopped at the usual place for passengers to debark from said train, and the servant, agent and employee of defendant upon said train called out the name of the station, Tuckerman, whereupon the passengers on said train began to debark therefrom, and this plaintiff also started to get off said train, and when she had reached the door of the car in which she was riding the said train was again negligently and suddenly started, and pulled up a short distance, and was then negligently, recklessly and suddenly stopped with a jerk and jar; plaintiff, who was standing at the door holding to the knob to brace herself, not having time to again take her seat, was by said jerk and jar pitched out of the door on to the platform of said car, striking her head on the railing of the platform, and raising a contusion thereon, injuring her shoulder, and hurting her back and leg and hurting her left ear, causing her to lose the hearing thereof, and mashing off thumb."

The answer denied each allegation of the complaint, and charged that plaintiff had been warned to keep her seat until the train reached its proper place for her to alight, and that she would be notified as to the proper time and place to alight from the train. It further charged that she assumed the risks incident to riding on a freight train; and further charged contributory negligence.

A jury trial resulted in a verdict in favor of the plaintiff for the sum of $ 2,000, and the defendant appealed.

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

1. The evidence fails to make a case of negligence, but clearly shows negligence on part of plaintiff. A passenger on a freight train assumes the risk incident thereto and must take notice thereof; he must exercise ordinary and reasonable care to guard against injury, and must not take a position where he is likely to be injured by a sudden jerk, etc. 4 Elliott on Railroads, § 2553; 120 Ind. 549; 98 N.C. 449; 79 Va. 241; 99 N.C. 241; 71 Ark. 590; 32 C. C. A. 283, 412, 540; 6 Id. 643; 27 A. & E. R. Cases, 216; 52 Ark. 517; 38 F. 822; 14 Allen, 429; 107 Mo. 653; 18 Mo.App. 290; 41 Id. 432; 16 Col. 103; 46 Ark. 528; 71 Id. 590; 40 Id. 322; 72 N.W. 1112; 84 Ark. 181.

2. Railroads have the right to make reasonable rules for the safety of passengers. 4 Elliott on Railroads, 1576; 45 Ark. 263; 47 Id. 79; 49 Id. 357. Passengers must take notice of and obey these general rules. 4 Elliott on Railroads, 1576; 30 S.W. 547; 38 Kans. 507; 29 Ind. 232; 31 Ark. 50.

3. Court erred in instruction for plaintiff, and the verdict is excessive. Reber v. Bond, 38 F. 822, governs this case.

O. W. Scarborough and Stuckey & Stuckey, for appellee,

1. A passenger on a freight train assumes all risks, etc., ordinarily incident to operating a mixed train, and it was necessary for plaintiff to show something more than the ordinary jerk or jar, and this is what the court told the jury in instruction No. 1. 71 Ark. 590; 83 Id. 22.

2. She was not guilty of contributory negligence. That was a fact for the jury and properly left to it under the charge of the court. 79 Ark. 335; 83 Id. 22; 109 S.W. 295; 57 Ark. 436; 7 Am. & Eng. Enc. of Law (2d Ed.), 456.

3. The verdict is not excessive. There is no legal measure of damages for pain and suffering. 48 Ark. 396; 39 Id. 491. See, also, 25 Ark. 380; 83 Id. 437; 79 Id. 835; 47 Id. 497.

MCCULLOCH, J. HILL, C. J.

OPINION

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

Appellant challenges the sufficiency of the evidence, and contends that a peremptory instruction should have been given.

The testimony introduced on behalf of appellee tends to show that when the train reached Tuckerman the caboose came to a standstill near a certain road crossing where it was accustomed to stop, or where it sometimes stopped (there being no regular stopping place for local freight trains), and all the passengers walked forward to the door preparatory to alighting, and some of them did alight at that time; that the train was then put in motion slowly and moved a very short distance when it came to a stop with a sudden and unusually violent jerk which threw appellee down, as described in the complaint, and inflicted the injuries complained of. She was standing at the door, holding to the door knob, when the injury occurred. There was also testimony to the effect that when the passengers went forward and reached the door the conductor, who was standing on the ground near the caboose, called out to them, telling them to stop, that the caboose would be pulled up to the crossing; that the train began moving just at that time, and appellee did not have time to take a seat before the violent jerk came and threw her down. Appellee testified that she did not hear the admonition of the conductor, and the evidence does not show that it was given so loud or that he was so close to her that she must have heard it. She testified that she arose from her seat and went forward because the other passengers did so, and that she did not have time, after the train began to move again, to take a seat before the jerk came. She was fourteen years old when the injury occurred.

The evidence of several witnesses tended to show that the jar caused by stopping the train the second time was sudden and an unusual and extraordinary one, even for a freight train.

The testimony of witnesses introduced by appellant tended to establish facts sufficient to exonerate the company entirely from the charge of negligence, but in testing the sufficiency of the evidence as a whole we must view it in the strongest light favorable to the findings of the jury.

We are of the opinion that the evidence made out a case of negligence sufficient to go to the jury, and that the peremptory instruction was properly refused.

It is well settled that, though a passenger riding on a freight train must be deemed to have assumed all the risks usually and reasonably incident to travel on such trains, yet, where the railroad company undertakes the carriage of passengers on freight trains, it owes such passengers the same high degree of care to protect them from injury as if they were on passenger trains. Rodgers v. Choctaw, O. & G. Rd. Co., 76 Ark. 520, 89 S.W. 468; Pasley v. St. Louis, I. M. & So. Ry. Co., 83 Ark. 22, 102 S.W. 387.

But, as it is not practical to operate freight trains without occasional jars and jerks calculated to throw down careless and inexperienced passengers standing in the car, "the duty of the company is therefore modified by the necessary difference between freight and passenger trains and the...