St. Louis Southwestern Railway Company v. Overton

• Decision Date: 06 July 1914
• Docket Number: 89
• Citation: 169 S.W. 364,114 Ark. 98
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. OVERTON
• Court: Arkansas Supreme Court

169 S.W. 364

114 Ark. 98

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. OVERTON

No. 89

Supreme Court of Arkansas

July 6, 1914

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed.

STATEMENT BY THE COURT.

Pauline Overton, through her next friend and father, J. S. Overton instituted this suit against the appellant for personal injuries. The facts, as they might have been found by the jury, giving the evidence its strongest probative force in favor of the appellee, are substantially as follows:

On the morning of June 28, 1913, Mrs. Overton, the mother of Pauline, went with Pauline and other children to the station of Brinkley for the purpose of going on appellant's local freight train to visit her father, who lived on a farm about seven miles south of Brinkley, near Keevil. Appellant ran a daily mixed local freight and passenger train from Brinkley to other points along its line, including Keevil. The caboose or coach for passengers had been placed at or near the place where it usually stood when passengers took passage thereon. J. S. Overton and his wife and the children went into the coach which at the time was not connected with the engine and other portions of the train. The coach had seats running crosswise in the train similar to the seats in a regular passenger coach. The seats were cushioned, but at the top of the seats there was a strip of wood four or five inches in width. Overton was sitting facing north and his daughters Pauline and Margaret, were also facing north. His wife was on the back seat, facing south. They had been thus seated in the car four or five minutes. He had purchased a ticket for his wife. He did not intend to go with them to Keevil. After they had been seated a little while two men passed through the coach and one of them asked if the Overtons had tickets. Overton replied that he had the ticket for his wife, but that he himself was not going, that he was just putting his wife and children on the train. About the time these men passed out of the car the engine backed into the coach. The jar threw Overton out of his seat and down on the floor in the aisle. It threw his wife into the seat where he had been sitting. It threw Pauline over backward and struck her head cutting a place to the bone on the back of her head. Overton at the time of the impact, had his baby in his arms and was trying to quiet it. When he first noticed Pauline after the jar she was sitting in her seat with her eyes closed. She sat that way for quite a while, and then looked up and said "Papa, my head hurts me." The injury was back of the right ear. She had thick heavy hair and had on her straw hat.

Overton ran to the store and 'phoned to the doctor at Keevil, informing him that his wife and children were coming on the local. He then called Doctor McKnight, and they went in McKnight's car down to his wife's father's, where his wife and children had gone. When they arrived there Pauline was complaining of her head hurting her. The doctor forbade the parents bringing Pauline back home with them. She remained at her grandfather's until the following Monday. The injury occurred on Saturday before. Doctor McKnight brought her back in his car. He treated her five or six weeks. Prior to the accident she was in good health, and since then she had had chills and fevers, was very nervous, especially at night, frequently getting up at night crying, saying that some one was breaking into her room. She was always complaining of her head hurting her. Often at night she would wake up and go to her parents' bed, crying and screaming. These spells had continued up to a week before the trial. She never had such spells before the accident. The first three or four weeks after the accident she had spells of crying and screaming two or three times a week. After that the spells were less frequent, being sometimes two or three weeks apart. She had not grown or developed any since the accident. She was five and a half years old at the time of the accident. Since the accident she was not as rational as she used to be. Before the accident she appeared to be a very bright and active child, but after the injury she was very sluggish. When the other children were out at play she would drop her head and close her eyes like she was in a deep study about something. A younger playmate noticed that there was something wrong with Pauline. She was no longer the leader in their play as she was before the accident.

It was alleged in the complaint that the employees of the appellant negligently ran other cars upon the caboose and suddenly stopped its train while going at a rapid speed, "all of which acts were done with such force and violence as to knock plaintiff off her seat," causing the injury (which she describes) "to her damage in the sum of three thousand dollars."

The answer denied the negligence as alleged. It admitted that in the coupling of its cars plaintiff was knocked down, but denied that she was injured to the serious extent she claims. The answer also alleged that the injury was the result of the careless conduct of plaintiff's parents in permitting her to occupy a place where she could be injured by the coupling of the cars.

The employees of the appellant testified that the coupling at Brinkley at the time of the alleged accident was an ordinary coupling and such as is usually made by freight trains. They were backing up to make the coupling with two coal cars next the engine and some four or five freight cars next to the caboose. The employees did not know that Mrs. Overton and her three children were in the coach at the time the other cars were coupled onto it. The cars had automatic couplings. The witnesses did not notice any jar of the caboose. There was no occasion to make a severe coupling. It was not usual for couplings to be made with such force as to throw passengers from their seats. It was not safe for people to stand up in freight cars when couplings were being made.

The conductor testified that it was not the custom to allow passengers to get on the train until they were ready to start. He had notified passengers not to get on, but had not notified Mrs. Overton not to get on. The brakemen were making up the train, and there was no one to look out for passengers except the witness.

Among others, the court granted the following prayer at the request of appellee:

"(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, this did not relieve the railroad company from exercising the same high degree of care in the handling of its train as if she was riding on a regular passenger train, to avoid injuring her. 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 should be for the plaintiff."

The appellant objected to the granting of the above prayer, and especially to the words, "this did not relieve the railroad company from exercising the same high degree of care," and also the words, "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." The court overruled the objections, to which appellant duly excepted.

Appellant requested the following prayers for instructions:

"(3). If you find plaintiff, Pauline Overton, was injured from an unusual and extraordinary jerk or jar of the train while being coupled together at Brinkley, before you find for her you must find that she was a passenger on that train, and that she or some one for her paid or offered to pay her fare from Brinkley to Keevil. The fact that her mother had a ticket would not entitle Pauline to ride with her, unless payment of her fare was made or tendered.

"(4). You are instructed that if you find from the evidence that the plaintiffs boarded the caboose before the local freight train was made up and coupled together, and that neither the engineer nor the brakeman, clothed with the duty of coupling the train together, knew that plaintiffs or other passengers were aboard the train, and that it was not the custom at that point for passengers to board the train before it was coupled, the plaintiffs can not recover in this action for injuries resulting from the jars and jolts in the coupling of the train."

The court refused the foregoing prayers, and appellant duly saved its exceptions.

The court granted the following prayer for instruction at plaintiff's request, to which appellant saved exceptions:

"(3). If you find for the plaintiff, you will, in assessing her damages, take into consideration the injury sustained by her and the physical and mental pain and anguish endured by her on account of the injury, together with such as she will necessarily endure in the future, resulting from her injury, if any, together with all other facts and circumstances in the case, and assess her damages at such sum as you believe from the evidence will fully compensate her for her injury."

There was a verdict in favor of the appellee in the sum of $ 1,000, and judgment was entered in her favor for that amount. Other facts stated in the opinion.

Judgment affirmed.

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

1. Railway companies are only required to use such high degree of care in the handling of mixed trains as is consistent with practical and prudent conduct on the part of their employees. 52 Ark. 524; 57 Ark. 287; 60 Ark. 550; 55 Ark. 248.

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