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

114 S.W. 230, 88 Ark. 12, 1908 Ark. LEXIS 169

Opinion

Hnx, C. J.,

(after stating the facts). I. The first error assigned is in giving the second instruction, to the effect that if the jury found that the plaintiffs were passengers and were injured, and that such injuries were caused by a moving train of the defendant, this is prima facie proof of negligence on the part of the defendant. This presumption is based upon section 6607 of Kirby’s Digest. It is insisted that this is not a case for its application, and St. Louis & S. F. Rd. Co. v. Cooksey, 70 Ark. 481, is relied upon to sustain this position. In that case the plaintiff had alighted from a train and was passing the engine while it was not in motion when -an employee of the railroad company, engaged in wetting coal on the tender, carelessly turned the hose so as to throw a stream of .hot water on the plaintiff whereby he was severely burned. The court said that the statutory presumption only applies where the injury is caused by the actual running of the train, which was not the case there.

The case of St. Louis, I. M. & S. Ry. Co. v. Green, 85 Ark. 117, is also cited to sustain this contention; but this presumption was not considered in that case. The court has held this presumption applicable in the following cases, which are indistinguishable from the case at bar: Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548; Kansas City So. Ry. Co. v. Davis, 83 Ark. 217; St. Louis, I. M. & S. Ry. Co. v. Stell, 87 Ark. 308; St. Louis, I. M. & S. Ry. Co. v. Briggs, 87 Ark. 581.

II. It is next argued that there was error in refusing instructions asked on behalf of the defendant. The 8th instruction stated that contributory negligence was a bar to suits of this character, and that if the plaintiffs, by reason of lack of care on their part, either caused or contributed to produce the injury, the verdict should be for the defendant, even if the proof should show that the defendant was negligent. This subject was fully-covered in other instructions given on behalf of the defendant.

The iot'h refused instruction stated that the company was not bound to keep a watch to prevent persons attempting to get off its trains while in motion, and that its failure to do so is not negligence; and that if the plaintiffs voluntarily attempted to get off the moving train because they discovered they were on the wrong train, and were injured thereby, the verdict should be for the defendant. There was no charge of negligence for failing to keep watch to prevent persons attempting to get off trains while in motion, and it was not proper to give an instruction on a matter not in issue. As to whether the conduct of the young ladies in attempting to get off the train was negligence was fully and correctly explained in other instructions.

The nth refused instruction charged the jury that it made no difference whether the plaintiffs got on the wrong train or not; that such was not charged as a cause of action in the case; and if the employees of the defendant, in the exercise of care, did not anticipate 'that the plaintiffs were going to get off the train, they were not guilty of negligence, and the verdict should be for the defendant. The third instruction given at the instance of the appellant correctfy stated the law on this subject, and in much better form than it was stated in the nth which was refused.

Footnotes

•

*

The 15th refused instruction told the jury that if they found from the evidence that the plaintiffs were informed that the train that they got on did not go direct to St. Louis but connected w-ith a train at Little Rock that did go to St. Louis, they were not justified in leaving the train while it was in motion.

The depot policeman testified that he told the ladies that this train did not go direct to St. Louis, but connected at Little Rock. There is no other evidence that they were informed by any person of this fact. Their evidence shows that they were informed by the ticket agent that the train did go to St. Louis, and by the brakeman at the entrance to the car that it did not go to St. Louis. The court should not have given an instruction, which in effect was a peremptory one, that if this depot policeman gave them this information they could not recover, in the face of contrary information received from the ticket agent.

In addition to this, the instruction was incorrect in making it negligence, as a matter of law, to leave a moving train. The •undisputed evidence is that this train was moving very slowly when these ladies attempted to get off, and they said they did not know it was moving at all; and whether their conduct in leaving it was negligence presented a question of fact for the jury.

III. Finally, it is urged that the verdicts are excessive. The facts testified to by the young ladies as to the extent of their injuries are undisputed, and the jury had a right to accept what they said on the subject; and, accepting their testimony as true, it cannot be said that the verdicts are excessive.

IV. If either the ticket agent or the brakeman had explained to 'the ladies that they could go to St. Louis on this train by making the change at Little Rock, this accident would have been avoided. Each in a way' told the truth, but did not tell the whole truth; and their half-truths amounted to a misdirection to these ladies; and whether their conduct in leaving the train when they did was negligent was a question for the jury to determine. This has been done under proper instructions, and no error is found. The judgments are affirmed.

The third instruction was as follows: “3. The law does not require of the carrier that it do more than try to protect its passengers from dangers which it may reasonably anticipate; therefore if you find from the evidence in this case that the plaintiffs of their own accord negligently-jumped off the train while it was in motion, and thereby received the injuries of which they complain, they cannot recover, and your verdict should be for the defendant.” (Rep.)