St. Louis & San Francisco Railroad Company v. Dyer

• Decision Date: 09 November 1914
• Docket Number: 236
• Citation: 170 S.W. 1013,115 Ark. 262
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. DYER
• Court: Arkansas Supreme Court

170 S.W. 1013

115 Ark. 262

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. DYER

No. 236

Supreme Court of Arkansas

November 9, 1914

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; reversed.

STATEMENT BY THE COURT.

Appellee sued to recover damages for injuries sustained by him while a passenger on one of appellant's trains, and the evidence which he offered in support of his suit was substantially as follows: Appellee testified that he was twenty-three years old, and was returning from a picnic which had been given at Hartford on the 1st day of September, 1913, and that he came from Hartford on the Rock Island train and changed cars at Mansfield. That he and two friends got on the train at Mansfield and sat down in some seats near the center of the car, but that they soon got up and walked back to the rear end of the car. That the car was vestibuled, but that, while the door was closed, the trap over the steps was open and that, as he walked out on the platform of this car, he stepped to one side, without observing that the trap was up and fell through that space, and, as he did so, he threw his hand through the glass door and sustained a rather painful injury. Paul Cobb, who was one of his companions, testified that they got on the train between the rear and the next to the rear coach and that, after going into the rear coach they decided they would go into the smoker, and they turned to enter that car, but found people getting on the train from Hartford. They decided that they would go to the rear of the train and get off the back end of the coach, and they walked back there for that purpose. That a Mr. Burns, who was the third member of the party, led the way, and was followed by Mr. Dyer, and witness followed behind. That Dyer started down the steps, and the trap door was up and the vestibuled door closed, but that there was no light at the end of the car to disclose that condition, and that in some way Dyer stumbled into this opening and threw out his hand and struck the door. That when he heard the glass break he (witness) said "We had better get away from here right now, or the railway company is liable to have us arrested," when Dyer said, "I cut my hand badly," and he accompanied him to a physician, where the wound was dressed. That the train was due to depart at 8:06 P. M., and the injury occurred a few minutes before that time. Burns testified that he and his two companions got to the depot a short time before the train started, and they got on the train to go to Arkoal. That they went into the train and sat down, and were watching for the arrival of a train coming from the east known as the short train, and that after waiting some time they decided they would walk to the rear end of the train to see who got off this short train, and that this trap door was up and the door of the car closed, and there was no light there except a red lantern at the rear end of the coach, which did not light up the space covered by this trap door, and that appellee walked straight out to the rear end of the car and stepped to the right, and fell, and in throwing out his arm sustained the injury for which he sues.

The conductor in charge of the train testified on behalf of appellant substantially as follows: That this train ran from Mansfield to Fort Smith, and that the railroad company had in force a regulation requiring all passengers to exhibit their tickets before entering the train, and that passengers were being received at the front end of the rear car and at the rear end of the car next ahead of the rear car, at both of which entrances employees of the railroad company were stationed for the purpose of requiring the exhibition of tickets, and that all other doors in the train were closed so that passengers might not enter the train without exhibiting their tickets, and that this was a necessary thing to do to prevent passengers entering the train who had no tickets. The conductor explained that at Mansfield it was his custom to leave the trap up at the end of the rear car and that this was done in order that the porter might enter the train after it had left the station. That in leaving Mansfield the train had to back up the track until they struck the main line toward Fort Smith, and that in doing this the porter went along by the side of the train for the purpose of flagging it out of the station, and the trap was raised inside the door so that the porter might enter the train without having to go up to the front end of the train when it had reached the main line. The proof does not show just what this distance was, but it does show without dispute that no one was supposed to enter the train or leave it through the door where appellee was hurt while the train was standing at that station. The injury occurred and appellee left the train in company with his companions before the train left the station, and no member of the train crew appears to have known anything about the injury for some time thereafter.

The red lantern, which the proof shows to have been sitting on the rear end of the train, was placed there for the protection of the train and because the regulations of the company required it and for the use of the porter in flagging the train out of the station.

Appellee recovered judgment for a substantial sum, and this appeal has been duly prosecuted.

Judgment reversed and cause dimissed.

W. F. Evans, J. B. McDonough and B. R. Davidson, for appellant.

1. The regulation as to purchase of tickets before entering a train, and showing them at proper doors or entries, was reasonable. 94 Ark. 153. Leaving the vestibule of a standing train open is not negligence. 81 Ark. 405; 27 L. R. A. (N. S.) 253; 51 So. 616; 87 Ark. 335.

2. Plaintiff assumed the risk. 14 Allen (Mass.) 433; 149 Mass. 204. A passenger's place is inside, not outside, the coach. 29 Ind. 82-85.

3. He was guilty of contributory negligence. 40 Ark. 298-322; 46 Id. 528-533; 24 A. 816. There was no presumption of negligence. 70 Ark. 481.

John W. Goolsby, for appellee.

1. The leaving of trap open was negligence. 92 Ark. 432; 76 F. 735. The cases 81 Ark. 405, 27 L. R. A. (N. S.) 253, and 87 Ark. 335, are not applicable.

2. Appellee did not assume the risk caused by the negligence of the company, of which he had no knowledge. 93 Ark. 240.

SMITH, J. KIRBY, J., dissents.

OPINION

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

A railroad company has the right to require all persons to purchase tickets before becoming passengers, and, as a means of enforcing this regulation, it has the right to require the exhibition of this ticket before entering the train. St. Louis & S. F. Rd. Co. v. Blythe, 94 Ark. 153, 126 S.W. 386; St. Louis S.W. Ry. Co. v. Hammett, 98 Ark. 418, 136 S.W. 191, and St. Louis S.W. Ry. Co. v. Branch, 106 Ark. 269, 153 S.W. 118. To this end the railroad company may require passengers to enter at certain doors, provided sufficient facilities are afforded, and may close other doors to prevent entrance therein of passengers. Here the railroad company had two doors open, and all the others closed. All these other doors were closed to compel passengers to enter at the doors where members of the train crew were stationed to examine tickets as passengers entered the cars. Appellee had entered this car with his companions, as all other passengers had been required to do, and was injured before the departure of the train in the manner stated.

The case of St. Louis, I. M. & S. Ry. Co. v Oliver, 92 Ark. 432, 123 S.W. 662, discusses the right of railroads to provide vestibuled cars and the care which must be exercised when they have been provided. The facts in that case were that Oliver, the passenger, secured passage on one of defendant's trains from Malvern to Benton, and, while passing out of the chair car, in which he had been riding, to the smoker ahead, he fell in the open trap door in the vestibule between the cars, his evidence being that, as he passed out of the chair car on the platform between the cars, he met a gentleman starting to go into the chair car, and he stepped slightly to the side to permit this party to pass, and fell down the steps in the vestibule. The trap door was not down over the steps, and it was dark in the passageway between the cars and in the vestibule. The rules and custom of the railway company required that, when such a vestibuled passenger train left a station, the servants of the company should close...