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

• Decision Date: 25 May 1908
• Citation: 111 S.W. 263,86 Ark. 325
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. RUSH
• Court: Arkansas Supreme Court

111 S.W. 263

86 Ark. 325

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY CO. v. RUSH

Supreme Court of Arkansas

May 25, 1908

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

Cause reversed and remanded.

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

1. The announcement of a station is not an invitation to passengers to alight. 76 Ga. 333; 88 Ala. 538; 92 Id. 237; 97 Id. 332; 15 Lea. (Tenn.) 254. The stopping of the train after station was called was not the proximate cause of the injury. 68 P. 1037. No recovery can be had where the passenger is at fault. 39 S.E. 427; 113 Ga. 1021; 139 F. 543.

2. Plaintiff was guilty of contributory negligence as a matter of law in attempting to get off a train in motion situated as she was. 37 Ark. 526; 46 Id. 423; 96 S.W. 562; 54 Ill. 135; 86 Id. 467; 78 Id. 88; 39 So 767; 116 Ill.App. 507; 77 N.E. 569; 51 A. 83; 94 Md. 226; 46 S.E. 12; 56 A. 545; 55 Id. 545; 204 Pa. 474; 34 So 110; 44 S.E. 1005.

3. It was error to let the jury pass on the question as to what a prudent person would have done. 69 Ark. 489.

4. Rush's testimony was hearsay. 61 Ark. 52.

5. Verdict is excessive. 57 Ark. 377.

McMillan & McMillan, J. D. Conway and W. H. Arnold, for appellee.

1. Carriers of passengers must be extremely careful not to mislead passengers into the belief that the halting of a train is meant as an invitation to alight; and if the conduct of the servants reasonably may produce that impression, and the passenger so understand it and is injured, the carrier is liable. 83 Ark. 217; 78 Ind. 203; 3 A. & Eng. Rd. Cases, 436 Thompson on Negl. § 2881; 7 L. R. A. 323; 88 Ala. 538; 76 Ga. 770; 66 N.Y. 642; 44 Ark. 322; 96 S.W. 109, 653; 99 Id. 28.

2. It is not negligence per se for a passenger to leave a moving train. 46 Ark. 437; 37 Id. 526; 135 Mass. 21; 4 Ont. Rep. 201; 16 A. & E. Rd. Cases, 347. It is a question for the jury. 71 N.Y. 489; 79 Ark. 335; Hutch. on Carriers, (3 Ed.) § 1123; 82 Ark. 504; 67 Id. 531; 147 U.S. 571; 83 Ark. 22.

3. Veerdict not excessive. Kirby's Digest, § 6288; 4 Sutherland on Damages, § 1266; 1 Joyce on Damages, § 58o; 102 Mo. 669; 22 Am. St. 800; 47 Id. 390; 57 Ark. 320; 60 Ark. 550; 76 Id. 184.

OPINION

HILL, C. J.

Mrs. Rush, wife of the plaintiff, who is appellee here, with her little daughter, six years old, took passage on a train of the appellant company at Arkadelphia, destined to Texarkana. She had never traveled on a railroad train before, and was exceedingly nervous and apprehensive during her journey. Before the train reached Texarkana, the ordinary notification in the coach was given, and Mrs. Rush was assured by the conductor and porter that they would help her off the train; but when the train was approaching the station the passengers left the car in which she was riding and went forward to debark from a forward car. Mrs. Rush evidently became nervous over this situation, and went forward with her child, and, finding the trap door to the vestibule open, and the train either stopped or running very slowly, descended upon the steps, evidently fearing that she was about to be carried beyond the station, and while there fell or was thrown by the movement of the train, and was instantly killed. This action was brought by her husband, and he recovered a verdict for $ 5,000, upon which judgment was entered, and the railroad company has appealed.

The case turns upon the correctness of the fourth and sixth instructions, which sum up the evidence upon which the plaintiff sought to recover, and which are as follows:

"4. If you find from the evidence that the train on which Mrs. Rush was a passenger was approaching Texarkana, her destination, the employees of the defendant announced the name of the station in the customary manner and opened the door and raised the platform which formed and closed up the vestibule between the coach in which Mrs. Rush was a passenger and the coach next to it, and that thereupon the train slowed down, and that Mrs. Rush, believing

that Texarkana had been reached and that the train was slowing down to stop at the station, left her seat and went to the door of the coach, and while the train was moving very slowly stepped down on the steps to be in readiness to step off when the train should fully stop, and that, instead of stopping fully, the train moved suddenly forward without notice or warning, in consequence of the negligent act of the employees of the defendant, and she was thereby thrown under the train and run over and killed, it would be for the jury to say, under all the facts and circumstances of the case shown in the evidence, whether the conduct of Mrs. Rush caused or contributed to her death. And, if you further believe that Mrs. Rush did, under the circumstances, what an ordinary prudent person would have done, then she was not guilty of contributory negligence, and plaintiff would be entitled to recover.

"6. If you find from the evidence that the deceased was a passenger on the defendant's road from Arkadelphia to Texarkana, and that when the train was approaching Texarkana the employees announced the name of the station in the customary manner, and that after passing the city limits the train came to a stop before it reached the depot, and the deceased went from her seat in the coach to the platform and steps of the car under such circumstances as would lead a reasonably prudent person to believe, and she did believe, that the train had stopped for passengers to Texarkana, and that she acted as a reasonably prudent person, and that in attempting to get off the train moved suddenly forward without sufficient time for her to alight, and that by reason thereof she was thrown from the steps of the car, then you will find for the plaintiff."

There was evidence to sustain the verdict based upon these instructions, and the question is, whether these instructions correctly state the law.

This court is fully committed to the doctrine that boarding or alighting from moving trains ordinarily presents the question of fact as to contributory negligence, to be determined by the jury under the facts of each case, and that it is not necessarily negligence per se to do so. Little Rock & F. S. Ry. Co. v. Atkins, 46 Ark. 423; St. Louis, I. M. & S. Ry. Co. v Cantrell, 37 Ark. 519; St. Louis, I. M. & S. Ry....