Wallace v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 01 July 1907
• Parties: WALLACE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

103 S.W. 747

83 Ark. 356

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

Supreme Court of Arkansas

July 1, 1907

Appeal from Nevada Circuit Court; Joel D. Conway, Judge; affirmed.

STATEMENT BY THE COURT.

This is a suit brought in the Nevada Circuit Court by W. T. Wallace as next friend of his minor son, S. L. Wallace, for personal injuries received while alighting from defendant's train and also a suit brought by W. T. Wallace in his own behalf for damages for loss of his son's time. The two suits were consolidated and tried together.

The complaints allege that the plaintiff was a passenger on one of defendant's trains on the 23d day of September, 1905 and when the train reached Prescott, the place of plaintiff's destination, and the train had stopped for passengers to alight, he started to get off, and when he reached the platform of the car a violent jerk in the train caused him to fall, and his hand was caught and badly bruised, from which he suffered great physical pain. The minor asks for five hundred dollars damages. The complaint of W. T. Wallace alleges the same facts; and the further fact that the minor was his son, able-bodied and industrious, of the age of 16 years, that his wages were worth thirty dollars per month, and that on account of the injury he had not been able to earn anything for five months, and prays for two hundred dollars damages.

The answer denied all material allegations.

The testimony by appellants to show negligence is as follows: S L. Wallace is 16 years of age. On the 23d day of September 1905, he was a passenger on defendant's train coming from Gurdon to Prescott. When he got to Prescott, and the station was called, the train stopped and he started off. When he got to the platform, the train backed and threw him, and his hand was caught between the cars, and he called for help. He never left his seat until the train stopped. When the train stopped, he got up and started out. He got to the platform, and the train backed. It backed pretty hard, with a jar. He had just stepped across the coupling. The jerk threw him backward. He could not get his hand loose. Some man on the train came up and tried to pull him out. His hand stuck. The man went out and "hallooed" two or three times before he got them to hear him. They finally removed the train and released him. It hurt his hand bad. It rose after that. Then follows other testimony showing the nature and extent of the boy's injuries. Then follows this statement: "There was other testimony about the manner of the stopping of the train." The abstract then continues as follows: "At the request of the defendant and over the objections of the plaintiff, the court gave the following instructions to the jury:

"2. If you find from the evidence in this case that the train stopped at Prescott made an ordinary stop, and that it was made carefully by the engineer, then your verdict must be for the defendant, even if you should find that plaintiff was injured by the jerk of the train.

"3. You are instructed that while carriers of passengers are held to a high degree of care, they are not insurers of the safety of passengers, and there is that same corresponding high degree of care on the part of the passenger to act with care and prudence; and if he fails to do this, and such failure in any degree contributes to his injury, he cannot recover, even if the carrier was negligent.

"4. Before a carrier can be held liable for the injury of a passenger, it must appear from the evidence that the carrier was guilty of some negligence which caused or produced the injury, and still the passenger cannot recover if it also appears from the evidence that the passenger himself was also guilty of negligence. Therefore if you find from the evidence in this case, either that the defendant was guilty of no negligence, or that the passenger himself was guilty of any negligence that in any degree contributed to the injury of which he complains this bars his recovery, and you must find for the defendant.

'3. You are instructed that, while carriers of passengers employees were not bound to stop the train at the station without a jar or jerk, but they were only bound to exercise due care in this regard; and you are further instructed that the engineer had the right, if the train did not stop at the proper place either for passengers to alight or for the purpose of taking water on the engine and it was his duty, to move...