St. Louis Southwestern Railway Company v. Aydelott

• Decision Date: 30 April 1917
• Docket Number: 343
• Citation: 194 S.W. 873,128 Ark. 479
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. AYDELOTT
• Court: Arkansas Supreme Court

194 S.W. 873

128 Ark. 479

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. AYDELOTT

No. 343

Supreme Court of Arkansas

April 30, 1917

Appeal from Prairie Circuit Court, Southern District; Thomas C Trimble, Judge; reversed as to Mrs. Aydelott; affirmed as to E. A. Aydelott.

Judgment affirmed.

Daniel Upthegrove, of Missouri, and Hawthorne & Hawthorne, for appellant in the Mrs. Aydelott case.

1. The first instruction for plaintiff, while copied from 52 Ark 524, was inapplicable to this case and erroneous. It is abstract and misleading here. 41 Ark. 382; 99 Id 367; 16 Id. 628; 55 Id. 588; 63 Id. 477; 102 Id. 205.

2. The second instruction given was also erroneous. 73 Ark. 548; 105 Id. 269; 54 Id. 25; 101 Id. 183.

3. The third is objectionable and erroneous. It tended to magnify the injuries. 58 Ark. 136; 78 Id. 374; 96 Id. 339; 57 Tex. 215; 195 Ill. 48.

4. It was error to give the fifth on exemplary damages. There was no evidence of wilful or wanton acts and no implication of malice. The fifth and sixth asked by defendant on contributory negligence and assumed risk should have been given. The remarks of the court were prejudicial and invaded the province of the jury. It is error to give inconsistent and contradictory instructions. 54 Ark. 602; 72 Id 31; 83 Id. 202; 74 Id. 437; 89 Id. 217; 65 Id. 64.

5. The verdict is excessive.

Daniel Upthegrove, J. R. Turney and Hawthorne & Hawthorne, for appellee in the E. A. Aydelott appeal.

There is no abstract for Mr. Aydelott's case. Nothing to show that a motion for new trial was passed upon by the court. No exceptions were saved to the rulings of the court as to the admissibility of the testimony. 56 Ark. 594; 45 Id. 539.

2. There is no error in the instructions as to him. There is no proof as to expenses for doctor's bills and medicine, and he can not recover for assistance of his wife. Kirby's Digest, § 6017; 97 F. 837.

Jo. Johnson, for appellee, Mrs. Aydelott.

1. The instructions given for appellee were the law. 99 Ark. 366; 108 Id. 292; 87 Id. 531; 90 Id. 494; 73 Id. 548; 90 Id. 485; 116 Id. 334. The instructions should be considered as a whole. There was no contradiction in them. 97 Ark. 226; 78 Id. 132. Any error was cured by others given. 78 Ark. 147; 78 Id. 279; Ib. 22; 82 Id. 105.

2. Proof of injury makes a prima facie case. 73 Ark. 548, 552.

3. The instructions asked by defendant were properly refused. 92 Ark. 6.

4. There was no prejudice in the remarks of the court, and the instructions are not conflicting. Nor were they prejudicial.

5. The verdict is supported by the evidence, and is not excessive. 83 Ark. 437; 91 Id. 97.

Jo. Johnson, for E. A. Aydelott, appellant.

1. It was error to exclude appellant's testimony. Kirby's Digest, § 3095; 116 Ark. 334; 29 Id. 603; 43 Id. 307; 6 Enc. Ev. 901-3; 1 Greenleaf, Ev., § 254; 52 N.H. 221.

2. He was entitled to recover for the services and assistance of his wife. 116 Ark. 334; 84 Id. 617.

3. The court erred in its instructions. 87 Ark. 308; Kirby's Digest, § 1236; 39 Okla. 33, 44 to 50.

STATEMENT BY THE COURT.

This suit was instituted by the appellee, Mrs. Aydelott, and her husband, E. A. Aydelott, against the appellant. The first five paragraphs of the complaint purported to state a cause of action against the appellant in favor of the appellee, Mrs. Aydelott, in that she alleges that she was a passenger on appellant's train, and when the train stopped at her destination, the station of Lagrue, she started to debark with packages in her hand, and when she had reached the first step, the train was negligently started, and she was thereby thrown to the ground and greatly injured. She alleged that she had no assistance in debarking; that there was no step box furnished her for alighting, and that on account of appellant's negligence she was permanently injured, and she prayed damages in the sum of $ 3,000.

Paragraphs 6 and 7 of the complaint purported to set up a cause of action in favor of E. A. Aydelott. He adopts the allegations of the appellee, Mrs. Aydelott, as to negligence; alleges that he was her husband, and that by reason of the injuries to her he had been "deprived of her assistance, companionship, and association as a wife," to his damage in the sum of $ 1,000; that he had incurred expenses for medicines and doctor's bill in the sum of $ 100; that the acts of negligence were committed wilfully and wantonly, and he therefore prayed exemplary as well as compensatory damages.

The appellant denied all the material allegations of the complaint as to negligence, and set up the defenses of contributory negligence and assumed risk.

The appellee testified that she was a passenger on appellant's train, returning from Hazen to her home at the station of Lagrue. When the train stopped, neither the conductor, brakeman nor porter made an appearance. She started to get off and opened the door and reached the platform of the coach and started to put her foot down on the first step, and the train pulled out and she fell to the ground. She had several packages in her hand when she fell. The train jerked her from the steps. She then describes her injuries in detail.

The conductor of the train on that day testified that the train stopped at Lagrue on that occasion about three minutes. The coach she was traveling in was an ordinary combination coach on the rear of the train. The train was a mixed train. He was sitting in a chair in the baggage department, and as he had no freight to unload, he did not get up out of the chair until they started. He did not send any of the train men out to see about the passengers getting off. He had forgotten that there was a passenger to get off; he had forgotten that she was on the train. When they started he looked out and saw Mrs. Aydelott standing on the platform, and she turned and walked off. He did not know whether the train moved before she got off or not.

The engineer on the train that day testified that he stopped the train at Lagrue on that occasion three or four minutes.

The station agent at Lagrue testified that the train arrived at 8:32 and departed at 8:35.

The court, among others, granted appellee's prayer for instruction as follows: "If you find for Mrs. Aydelott, you should assess her damages at such sum, not exceeding the amount sued for, as will in your judgment be a fair and just compensation for her alleged injuries to her back, kidneys, body, ankle, leg, nerves, nerve centers, shock, mental and physical pain and anguish, or any thereof, if any, that you may find she suffered."

Other instructions were given which will be referred to in the opinion.

The record shows the following: "During the argument of the case by the counsel for the plaintiff and the defendant, the following exceptions were had:

"Mr. Hawthorne: The railroad company was not guilty of negligence.

"The Court: I will instruct the jury that the railroad company was guilty of negligence; the conductor himself says that he forgot that a passenger was on there, and that he never saw the passenger at all.

"Mr. Hawthorne: I want to except to the ruling and remarks of the court. You have given an instruction just to the contrary to that.

"The Court: The jury will take all of these instructions together, and not take any one by itself. They don't have to have a porter to look after every passenger there."

Other remarks made to the jury during the progress of the argument were objected to, but it is unnecessary here to set them out.

The jury returned a verdict in favor of the plaintiff, Mrs. E. A. Aydelott in the sum of $ 3,000, and returned a verdict in favor of the defendant railway company as against the plaintiff E. A. Aydelott. Judgment was rendered in accordance with the verdict and the railway company and E. A. Aydelott both appealed. Other facts will be stated in the opinion.

OPINION

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

This court in Barringer v. St. Louis, Iron Mountain & S. Ry. Co., 73 Ark. 548, 551, 85 S.W. 94, announces the law as to the duty of carriers to passengers while getting on and off trains as follows: "It is the duty of carriers to allow their passengers a reasonable opportunity of getting on and off their trains, and they must stop at stations long enough for that purpose. A reasonable time is such time as a person of ordinary care and prudence should be allowed to take. It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger and to the surroundings at the station, and to give a reasonable time under the existing circumstances, as they are known, or should be known by its servants, for a passenger to get on or off its trains." See, also, Hill v. St. Louis, I. M. & S. Ry. Co., 85 Ark. 529, 109 S.W. 523; K. C. So. Ry. Co. v. Worthington, 101 Ark. 128, 141 S.W. 1173; St. Louis, I. M. & S. Ry. Co. v. Trotter, 101 Ark. 183, 190, 142 S.W. 189; St. Louis, I. M. & S. Ry. Co. v. Wright, 105 Ark. 269, 150 S.W. 706.

These are the principles which should have guided the court in its instructions in the instant case. Under the evidence the only question for the jury to determine on the issues of negligence and contributory negligence was whether or not the appellant had exercised ordinary care (that is, the highest degree of care which one of ordinary prudence would exercise for the security of passengers reasonably consistent with the business of a common carrier by rail and appropriate to the means of conveyance and the practical operation of the road), to stop the train long enough to enable passengers, while exercising ordinary care on their part, to debark therefrom in safety.

Where the testimony tends to show that the negligence consists only in a...