Steptoe v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 31 May 1915
• Docket Number: 18
• Citation: 177 S.W. 417,119 Ark. 75
• Parties: STEPTOE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

177 S.W. 417

119 Ark. 75

STEPTOE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

No. 18

Supreme Court of Arkansas

May 31, 1915

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause remanded.

J. W. & J. W. House, Jr., for appellant.

1. It was error to refuse the modifications to the instructions requested by defendant, as asked by the plaintiff. The modifications asked merely embodied the rule that carriers must be careful not to invite or to mislead passengers into alighting at an improper or dangerous place. If a carrier, or its servants, induce passengers to believe the train has stopped, and they are invited to alight, and the passenger is thereby injured the carrier is liable. 99 Ark. 248. It is error to give instructions about which there is no issue. 69 Ark. 489; 67 Id. 147; 77 Id. 234; Ib. 261 etc.

2. It is the duty of a carrier that it should be exceedingly careful to see that passengers are not injured, and if the train stops before the caboose reaches the station, it is the duty of the person in charge to notify passengers when they are to alight. 84 Ark. 81; 87 Id. 581; 88 Id. 325; 87 Id. 101; 59 Id. 122; 95 Id. 220.

3. The instructions are inconsistent and erroneous. 79 Ark. 12; 83 Id. 202; 94 Id. 282; 89 Id. 213; 69 Id. 134; 65 Id. 64; 95 Id. 506; 96 Id. 311.

4. There is no difference as to liability between a local freight and passenger train. 44 Ark. 322; 88 Id 225, and cases supra.

5. An erroneous instruction is not cured by giving a correct one on the same subject. 87 Ark. 364; 88 Id. 550; 89 Id. 213; 99 Id. 377; 100 Id. 433; 101 Id. 37; 105 Id. 223; 107 Id 245.

6. Abstract instructions should not be given. Nor should the court single out a certain class of witnesses, or particular class of testimony, and refer to them in its instructions. 59 Ark. 122; 99 Id. 69; 103 Id. 21; 105 Id. 467; 62 Id. 286-312; 99 Id. 69-77.

7. The instructions asked by plaintiff and given covered every question arising in this case. 104 Ark. 67; 109 Id. 5-10. The fact that defendant plead contributory negligence is an admission of negligence. 99 Ark. 377.

Troy Pace, P. R. Andrews and W. G. Riddick, for appellee.

1. Each side has a right to have its theory of a case presented to the jury under proper instructions. 87 Ark. 243; 96 Id. 206; 92 Id. 394. There was no conflict.

2. It is not error to refuse abstract instructions. The assumption of undisputed facts is not error in an instruction, nor is it error to submit to the jury hypothetical instructions upon facts about which there is no dispute. 67 Ark. 147; 104 Id. 196; 89 Id. 178; 91 Id. 475; 96 Id. 506.

3. One who takes passage upon a freight train assumes the inconveniences and risks usually and reasonably incident to travel on such trains. The appellee's instructions correctly stated the law. 76 Ark. 520; 98 Id. 494; 93 Id. 119; 94 Id. 75; 6 Cyc. 614; 76 Ark. 356; 75 Id. 211. A carrier is not required to stand guard over its passengers as if they were unable to protect themselves in the ordinary conditions of travel. 76 Ark. 356; 75 Id. 211; 6 Cyc. 614.

4. It is true that the announcing of a station followed by a stop of the train, is an implied invitation to passengers to alight, etc., but the instructions for defendant correctly declared the law on this question. 46 Ark. 322; 88 Id. 325. But it is not negligence per se, and does not excuse contributory negligence. 67 Ill. 398; 31 L. R. A. (N. S.) 629; 16 Am. St. 63; 75 Ark. 165; 113 Ga. 1021; 57 L. R. A. 890; 97 Am. St. 666; 19 N.Y.S. 516; 5 Am. Negl. Cases, 529; 88 Cal. 86; 2 Am. Negl. Cases, 191; 81 Ill. 19; 92 Ala. 237. Here plaintiff was familiar with the operation of trains and stopping places. 2 Am. Negl. Cases, 608, 69; 92 Ala. 237; 97 Id. 332; 6 Am. Negl. Cas. 308; 71 Tex. 274; 4 Am. Negl. Cas. 322-326; 96 Ind. 346; 38 N.J.L. 137; 87, Am. Dec. 668.

MCCULLOCH, C. J. HART, J., concurs.

OPINION

MCCULLOCH, C. J.

This is an action instituted by the plaintiff, C. H. Steptoe, against the defendant railway company to recover for personal injuries alleged to have been sustained by plaintiff while alighting from the caboose of a freight train on which he was a passenger. The jury returned a verdict in favor of the defendant and the plaintiff has appealed.

Plaintiff was a traveling salesman, and took passage on defendants local freight train at Calico Rock, a station on the White River branch, and paid his fare to Guion, another station twenty or thirty miles distant. The train contained twenty-one cars besides the caboose, and arrived at Guion about 8 o'clock in the evening. It was on January 28, 1914, and was therefore after dark when the train reached Guion, the night being a dark one. The train came to a stop with the caboose 668 feet distant from the station, and the caboose, when it came to a stop, was standing on a trestle twenty-two feet high. Plaintiff and another traveling man were the only passengers and they attempted to alight from the caboose at that place, and they contend that they did so upon the invitation of the conductor and his assurance that it was a proper place for them to debark. When plaintiff attempted to alight from the steps of the caboose, he fell to the ground below and received very severe injuries. Plaintiff testified that when the train whistled he asked the conductor, "Are you going into Guion?" And that the conductor replied, "Yes;" that after the train came to a stop he and his companion picked up their suit cases and passed the conductor, who was sitting at his desk in the caboose writing, and that they asked the conductor, "Is this Guion?" and that the conductor replied, "Yes, this is the place." He testified that the conductor was sitting there and saw him and his companion pass out on the platform for the purpose of getting off the train. Plaintiff's companion testified concerning the incident and narrated the same facts upon the witness stand that plaintiff did. There is a sharp conflict in the testimony and the jury might have found either way upon the testimony. The conductor testified that the only conversation he had with plaintiff or his companion was that when the train whistled for Guion, the caboose then being as much as a mile distant from the station, one of the passengers, either plaintiff or his companion, asked, "What is this?" And that he (conductor) replied, "It will be Guion when we get there." The conductor testified that he immediately went up in the cupola of the caboose and out on the roof and proceeded along the top of the cars for the purpose of reaching the front end so as to be there when the train stopped, and that he was on top of one of the cars, within three or four cars of the engine when the train came to a stop. He denied positively that he was in the caboose at the time the train stopped or had any conversation with plaintiff or his companion except that just related. He is corroborated by several of the trainmen who testified that they saw the conductor on top of the boxcars going toward the engine before the train stopped. The defendant also introduced a written statement purporting to have been made by the plaintiff at his home a few days after the injury occurred, and the narrative of facts in that written statement is in direct conflict with what the plaintiff testified on the witness stand. However, the plaintiff denied that he made that statement, or rather he stated that he had no recollection of signing it, and that if he did so he was not conscious of it. He said that he was sick at home and suffering from his injuries and was not in a condition mentally to give any statement or to recollect the details of the one that was given.

Now, it is clear from the above statement of the testimony in the case that the jury would have been warranted in returning a verdict either for the plaintiff or for the defendant, and a verdict in favor of either would not be set aside as being without support from the testimony. The testimony, in other words, brought the plaintiff within the following statement of the law made by this court, which would have entitled him to recover: "A carrier of passengers must be careful not to invite or mislead its passengers into alighting at an improper place. If its servants in charge or management of a train induce its passengers to reasonably believe that the train has stopped, and that they are invited to alight, and if the passenger in so doing is injured while he is in the exercise of due care and diligence, the company will be liable." Chicago, R. I. & P. Ry. Co v. Claunts, 99 Ark. 248, 138 S.W. 332. The evidence adduced by the plaintiff tends to show a statement and conduct on the part of the conductor which amounted to an invitation to him and the other passengers to alight at that time and an assurance that it was a safe place for them to alight from the train. If the testimony of the conductor was true, his conversation with the plaintiff and statement to the plaintiff did not amount to an invitation to alight or an assurance that it was a safe place at which to do so. Even the plaintiff's own narrative of the facts does not make it conclusive as a matter of law that there was an invitation to him to alight, but it certainly was a question for the jury to determine whether the statement made to him by the conductor amounted to such an assurance. According to his testimony, he asked the conductor, after the train had come to a stop, whether or not that was Guion, and that the conductor replied, "Yes, this is the place." And he said that the conductor was sitting there and saw him and his companion start to leave the caboose. The above quotation from the Claunts case is a mere reiteration in substance of the doctrine announced by this...