St. Louis Southwestern Railway Company v. Byrne

• Decision Date: 24 December 1904
• Citation: 84 S.W. 469,73 Ark. 377
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. BYRNE
• Court: Arkansas Supreme Court

84 S.W. 469

73 Ark. 377

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. BYRNE

Supreme Court of Arkansas

December 24, 1904

Appeal from Miller Circuit Court JOEL D. CONWAY, Judge.

Suit by Rosa E. Beasley against the St. Louis Southwestern Railway Company. Plaintiff recovered judgment, from which defendant appealed. Pending the appeal plaintiff died, whereupon the cause was revived in the name of Lawrence A. Byrne administrator ad litem.

Affirmed.

STATEMENT BY THE COURT.

Appellant seeks by this appeal to reverse a judgment of $ 5,000 in favor of appellee for personal injuries. The grounds insisted upon here are a want of evidence to support the verdict contributory negligence, and newly discovered evidence.

The proof on behalf of appellee tended to show that on August 7 at 2:40 a. m., she boarded appellant's passenger train at Pine Bluff. She intended to go to Texarkana, but the night clerk, whom she had entrusted to buy her ticket, had by mistake bought her ticket to Camden. When the conductor came through taking up tickets, she informed him that she wanted to go to Texarkana, and he informed her that she could get off at Camden, and get a new ticket, and have her trunk rechecked on to Texarkana. After passing Eagle Mills the conductor announced that Camden would be the next stop, and said to appellee: "When we pull up, you get up, and step out, and get your ticket, and you will have plenty of time to get your ticket, and get your baggage checked." When the train stopped, appellee got up, and left a lunch box and band box in the seat to keep any one from getting it. The train did not move up to depot; was about fifty yards away. There was no platform where she attempted to get off, and there was no one there to show her. She did not know on which side the depot was, and got off on the west side. As she was standing on the last step, the train moved backward, then forward with a sudden jerk, throwing her off about eight or ten feet. She fell upon her left shoulder and side. From the way the passenger train whistled, it was then about the city crossing. When she came to herself she raised upon her elbow and noticed that the train was going. She went to the depot and around back of the depot to the Terminal Hotel, where she got a room, and stayed all day, and suffered pain. While she was at the hotel, the depot agent came over to see her. She was in bed at the time. The lady of the hotel held the door ajar, and stood in it, and she talked to the agent, who stood on the outside. Her bandbox was left on the train, and the agent said he would try to get it. He came over again, and told her the box had come. She went over in the afternoon, and got the box. There was written on the box "Agent, Camden, Arkansas, a lady's at Camden that got off at the Iron Mountain crossing." The agent at Camden said to her, "If you didn't get off at the crossing, that isn't your box." She informed him that it was her box, but that she did not get off at the crossing. She took the train that night for Texarkana. After arriving home, she was confined to her bed for two months. Dr. Wisdom attended her. For weeks she could not raise her neck when in bed to take a drink of water; weighed when hurt 139 pounds; weighed at the time of trial 110; was still affected in neck, lungs and back; could not use her left arm much.

On cross examination appellee denied that she had borrowed 2.50 from one Robinson to go to Camden on, but said that instead he had paid her $ 4 in silver for her work. He was proprietor of the hotel at Pine Bluff where she worked. She had passed the depot at Camden before, but did not know which side it was on. Said train did not stop between Eagle Mills and Camden, but slowed up at river. She did not go to sleep between Eagle Mills and Camden. She did not see the conductor after she passed the station at Camden. Did not know Sam McGill. Did not meet the depot agent at Camden with Sam McGill that day, and did not say to Sam McGill that she got off at the C. & A. crossing. Did not say to them that after she got off at the C. & A. crossing, as she came down the embankment, the grass was wet with dew, and her feet slipped out from under her, and that was the way she fell. Did not say to the conductor on train after she passed the station at Camden, and before she reached the C. & A. crossing, that she had gone to sleep, and passed the station without knowing it. The conductor told her to stay on train, and when he came to McNeil he would give her a ticket back to Camden. He stated that at Camden the train had thoroughly stopped before she got out of her seat; could not tell how long it had been still. It was as long as three minutes. It is simply guess work.

Dr. Wisdom, who attended her at Texarkana, said that when called in he foud her suffering considerable pain in her neck and chest, and considerable soreness in her back. She had some difficulty in moving her head; could not raise her head without putting her hand back, and then not without considerable pain. He thought from the character of the injury that it came near breaking her neck. In his opinion a fall on the head from a train would cause the injury, but that slipping on the grass would not. The injury in her chest at first didn't seem to be serious; afterwards it became more grave in its character. Some days after that, she had a hemorrhage from her bowels, which indicated some internal injury in the bowels. He couldn't just locate where it was. He thought a violent shock or fall might possibly have produced that. When he first saw her, he didn't regard the injury as very serious, as it afterwards developed to be. She suffered considerable pain in her chest and bowels, and more pain possibly in the back of her head and neck. And, as to being able to judge the effect of this injury, couldn't tell whether it would be of long or short duration. There were no bones broken. The internal injuries were more manifest in the pulse than anything else. They were very much increased in beating. He attended her several weeks. A week or ten days after the injury he was a little apprehensive about her; thought perhaps the injury might prove fatal. He regarded her as suffering great pain. She was greatly reduced in flesh.

Mrs. Vann, a witness for the plaintiff, testified as follows: "I live in Texarkana, and know Rosa Beasley; have known her since the 3d of July. She was apparently in good health when I first knew her. She went to Pine Bluff on the 3d of August. She had been at my house up to that time from July 3. She came back to my house on the 8th of August in bad condition. I had to help her in the house, and put her to bed. Her shoulder and back were bruised, and she was complaining of her head, neck, shoulders and side. She was suffering great pain. She remained at my house in that condition about six weeks, and went to De Queen, and returned in about six weeks. She is not able to do anything now. When at my house, I am her sole attendant. She suffers more pain in her neck and head than in any other part. She is very nervous. She has nervous prostration. Any little thing coming through the house throws her into a state of nervousness. She had improved some when she went to De Queen. She doesn't sit up now for a whole day at a time. I never knew her before July 3. She is boarding with me. She has complained of the same character of suffering from the time she came to my house up until now. She still complains of her side, chest, head and neck. There is very little improvement in her. Of course, she is able to sit up, and she wasn't when she left my house."

Dr. P M. Agee, a witness for plaintiff, testified: "I live at Texarkana. I am a practicing physician. If I have any specialty, it is diseases of the bones and nerves. It is called Osteopathy. Have been in this line of practice three years. Reside in Texarkana, Ark., and have resided here about one year. I know Rosa Beasley, and have examined her. There is a slipping of the third vertebrae. It is slipped to the right. The fifth is slipped slightly to the left. The fourth, between the third and fifth, is in proper place. The vertebrae are, in common parlance, joints of the backbone. The third being slipped to the right and the fifth to the left make a crooked backbone, and lessens the caliber of the hole through which passes the spinal cord. There is pressure on the spinal cord there, and necessarily the health is bad for the future without it being corrected. It is a matter of conjecture whether it may or may not be cured. I think it will produce pain. I never treated the plaintiff. I made first examination three or four weeks ago, and only one time. That was at my office of the Foreman building. My opinion is that the backbone presses against the spinal cord. I can not tell how long after a fall before it would take effect. It might be an injury to the nerves that would make a contraction of the muscles and draw the bone out of the place when it had not been thrown out of the place by the fall. And it might have been done by the fall. This might occur without any particular notice, and without pain resulting immediately. Sometimes these things happen, and nobody...