St. Louis, Southwestern Railway Co. v. Wyman

• Decision Date: 05 July 1915
• Docket Number: 87
• Citation: 178 S.W. 423,119 Ark. 530
• Parties: ST. LOUIS, SOUTHWESTERN RAILWAY COMPANY v. WYMAN
• Court: Arkansas Supreme Court

178 S.W. 423

119 Ark. 530

ST. LOUIS, SOUTHWESTERN RAILWAY COMPANY v. WYMAN

No. 87

Supreme Court of Arkansas

July 5, 1915

Appeal from Monroe Circuit Court; Thomas C. Trimble. Judge affirmed.

STATEMENT BY THE COURT.

The appellee instituted this action against the appellant for damages for personal injuries. He alleged that he was a passenger on appellant's train from Brinkley to Clarendon. That upon arriving at Clarendon, the train came to a stop, and that while standing in the aisle waiting for another passenger ahead of him to get off, the defendant's employees caused the train to be jerked and started with such force that plaintiff was thrown violently backwards and received severe injuries to his back and thigh. The answer denied the material allegations of the complaint and set up contributory negligence on the part of the appellee.

The appellee testified that he was a passenger on appellant's mixed freight and passenger train from Brinkley to Clarendon. That some one hallooed out "Clarendon;" that he remained in his seat until the train "came to a dead stop," and then got up and went as far as the last seat then the bump came that threw him ten feet or more; he fell on his grip; his head hit the side of the seat; he fractured his pelvis and dislocated his hip. He didn't discover that he was seriously hurt until he had gone up to the hotel and had called on five or six merchants. Appellee was a drummer. He then details the expense to which he was put. He stated that the movement of the train at the time of his injury was very extraordinary. Other witnesses testified corroborating the testimony of the appellee to the effect that the train had stopped before he arose from his seat, and that it gave a sudden jerk and appellee fell; that the jerk was a hard one. One of the witnesses stated that the train moved something like half a car-length.

On behalf of the appellant, witness Donaldson testified that he was on appellant's train at the time that appellee was injured; that appellee was standing. He was asked this question: "Was Mr. Wyman standing?" And answered "Well, I was standing before he was." He further testified that the train had not been stopped before witness arose to depart. The train stopped first at the water tank. The second stop was right at the depot. As they got into town, witness got up and was standing with his hand holding to the back, of the seat. Wyman was standing on the opposite side. Witness was waiting for the jar to come, and when it came, Wyman was thrown back and several parties rushed up to him, thinking that he was hurt. When the train stopped for the station is the time when Wyman fell. The witness further stated that the jar on this occasion was not any more unusual nor any harder than "what is ordinary on freight trains."

The conductor testified that they stopped for water at Clarendon and after that they proceeded to the depot. The train pulled down and made a stop for the passengers to get out. The train did not make a second stop for passengers to alight. The coach was provided with air brakes and the air was connected. When the train stopped, and the air was released, there was a little bit of slack. There were sixteen cars in the train and the slack would amount to four or five inches per car. There was a sign in the car in large letters informing all persons to keep their seats until the train came to a full standstill.

The court gave the following instructions at the instance of appellee:

"No. 1. You are told that, while the plaintiff, in taking passage upon a mixed train assumed the risk of necessary and usual jolts and jars, and this did not relieve the railroad company from exercising the same high degree of care in the handling of its train as if he was riding on a regular passenger train to avoid injuring him. The risk of usual jolts and jars assumed by plaintiff is the risk incident to the mode of conveyance, and does not relax the rule as to the high degree of care to be exercised by the servants of the defendant to avoid injuring passengers, so, in this case, if you believe that the plaintiff was without fault and would not have been injured if the defendant's servants had exercised such high degree of care, your verdict would be for the plaintiff."

"No. 2. You are instructed that while a passenger riding upon a freight train assumes the risks and hazards that are incident to the operation of a freight train, yet it is the general duty of the carrier to use due care for the safety of the passengers and freight trains carrying passengers can not be operated carelessly without subjecting the company to liability any more than a passenger train, and the operatives in charge of a freight train can not any more overlook the due care of their passengers than can the operatives of a passenger train, and, although plaintiff in this case was a passenger upon a freight train, yet, if you find from the evidence that defendant's operatives in charge of said train failed to use due care for plaintiff's safety or negligently or carelessly operated said train or moved the caboose connected therewith in which plaintiff was a passenger, and that by reason thereof he was injured, your verdict should be for the plaintiff."

Appellant objected generally to the giving of each of these instructions, and duly saved its exceptions.

The court refused the following prayers for instruction by appellant:

"No. 1. The jury are instructed to return a verdict for the defendant."

"No. 2. You are instructed that it is the duty of passengers traveling upon freight trains or mixed trains to maintain their seats until the train shall arrive at a station and come to a full stop before arising to their feet for the purpose of getting off, and if you find from the evidence in this case that the plaintiff arose to his feet before the train upon which he was injured came to a full stop and he was standing up before the train stopped, and was thrown by the checking of the train or stopping of same, then your verdict should be for the defendant."

"No. 4. The jury are instructed that if they find from the testimony that the defendant brought its train to a standstill and that the plaintiff immediately thereafter arose to depart from said train, and while he was standing upon his feet, the train moved by reason of its inherent construction, that is, by reason of a slack of the train, without the engineer making any attempt to move the train, and that the accident resulted from a slack or voluntary movement of the train after it had stopped, then the defendant is not liable."

The court granted appellant's prayer No. 3, which is as follows:

"No. 3. The jury are instructed that railway companies in the transportation of passengers upon freight or mixed trains are only required to exercise such care and skill and diligence as is reasonably consistent with the transportation of passengers upon mixed trains, as they can not in the nature of things exercise the same care in stopping and starting mixed trains as they can passenger trains, and whenever a passenger embarks upon a mixed train, he assumes the risks incidental to the stopping and starting of such trains, provided the carrier exercises all care and skill that is reasonably consistent in operating its trains."

The jury returned a verdict in favor of the appellee for $ 1,750, and from a judgment in its favor for that sum this appeal has been duly prosecuted. Such other facts as may be necessary will be stated in the opinion.

Judgment affirmed.

S. H. West and J. C. Hawthorne, for appellant.

1. There was a sign posted in the car warning all passengers to remain seated until the train stopped. Plaintiff violated this warning and was injured. The company is not liable. 97 Ark. 507; 87 Id. 101, 109, 572; 83 Id. 22; 79 Id. 335; 93 Id. 240; 95 Id. 220; 74 Id. 31; 71 Id. 590.

2. The court erred in giving and refusing instructions. 57 Ark. 517, 287; 99 Id. 366; 52 Id. 248.

G. Otis Bogle and Harry H. Myers, for appellee.

1. Appellee was a regular passenger and did not leave his seat until the train stopped. He was injured by a sudden jerk, which is prima facie evidence of negligence. Kirby's Dig., § 6773; 83 Ark. 214; 103 S. R. 603; 73 Id. 543; 63 Ark. 636. As to risks assumed by passengers, see 98 Ark. 82. The rule as to due care is the same as to freight, mixed and passenger trains. 76 Ark. 520; 83 Id. 22; 87 Id. 109; 90 Id. 494; 95 Id. 220; 94 Id. 75; 93 Id. 119; 94 Id. 126; 105 Ark. 269; 52 Ark. 517.

Passengers must have sufficient time to alight with safety. 6 Cyc. 612; 98 F. 963; 147 U.S. 571; 101 Ark. 183; 73 Id. 548. Where a passenger exercising due care and diligence in alighting, is injured by a sudden jerk of the train, the carrier is liable. 84 S.W. 175; 88 S.W. 767; 96 Ark. 339; 102 Id. 533; 87 Id. 581-602; 105 Ark. 22; 87 Ark. 101. There is no error in the instructions, and the verdict is sustained by the evidence. 86 Ark. 587; 88 Id. 12; 90 Id. 108.

OPINION

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

I. The appellant contends that he effect of the instructions numbered 1 and 2, given at the instance of the appellee, was to make appellant's liability depend upon the issue as to whether or not the employees of appellant were negligent in the operation of the train, and that these instructions excluded from the jury the issue of contributory negligence. The court, in instructions on its own motion, told the jury that the theory of appellant's defense was that the allegations set up by the appellee in his complaint were not true, and that he was not injured, or "if he was injured, it was caused by his own negligence." When the instructions are considered together, as they must be, they are not open to the criticism which appellant...