Meeks v. Graysonia, Nashville & Ashdown Railroad

HaRt, J., (after stating the facts). Counsel for the plaintiff ask for a reversal of the judgment because the court erred in giving instruction No. 5 to the jury at the request of the defendant. The instruction reads as follows: “The court instructs the jury that the law requires railroad companies to furnish toilets for its patrons, and that the plaintiff is charged with knowledge of that fact, and that, if plaintiff - neglected or failed to ask the agent of the defendant for a key or location of the toilet, and, by reason of her failure or neglect to get this information from the agent of the company, but acted on her own volition and thereby received an injury, then the plaintiff would be guilty of negligence, and you will find for the defendant.” In the first place, this instruction entirely ignores the theory upon which the plaintiff predicated her right of action in this case. In her complaint she alleges that she was injured by the negligence of the defendant in the operation of its train upon which she was riding as a passenger. The particular act of negligence complained of was that the defendant negligently coupled its train to the coach in which she was riding as a passenger, and that she was violently thrown to -the floor. Moreover, the fact whether or not the defendant had a toilet at the station, and whether or not the plaintiff asked-the agent for a key to said toilet, was not the proximate cause of her injury. It cannot in any sense be said that the failure of the railroad company to comply with the statutory requirement of maintaining water-closets at its passenger depots was shown to be the natural and immediate cause of the injury to the plaintiff. The rule is well established in this State that, in an action for personal injuries, although the defendant may be shown to have been negligent in some manner, yet, unless the negligence so shown is the proximate cause of the injury complained of, no recovery can be had on account of said injury. It has been uniformly held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence and that it ought to have been foreseen in the light 'of the attending circumstances. Pittsburg Reduction Co. v. Horton, 87 Ark. 576; St. L. & S. F. R. Co. v. Whayne, 104 Ark. 506; St. L., Kennett & S. R. Rd. Co. v. Fultz, 91 Ark. 260; Hays v. Williams, 115 Ark. 406; and Bona v. Thomas Auto Co., 137 Ark. 217. It is manifest that the failure of the defendant to maintain toilets at its station, as required by statute, was not the proximate cause of the injury to the plaintiff, and that if could not have foreseen that its failure in this respect would have caused the injury complained of by the plaintiff. The allegation of the complaint is that the defendant was guilty of negligence in the operation of its train upon which the plaintiff was a passenger and thereby caused her injury. The particular act of negligence com-' plained of was that the other cars in the train were hacked against the caboose in which the plaintiff, was riding with such violence as to lift her up and throw her down on the floor. Instruction No. 5 wholly ignored the plaintiff’s theory of the case, and made it the duty of the jury to find for the defendant upon facts which were not the proximate cause of the injury. Hence it was necessarily prejudicial to the rights of the plaintiff. In view of another trial, we deem it necessary f,o state that the degree of care required in the operation of: freight trains which, by law, may carry passengers, was not correctly stated in the instructions given at the •request of. the plaintiff. "While local freight trains are allowed to carry passengers, the primary purpose of such trains is the transportation of freight. Their equipment therefore is adapted to such business, and those of the traveling public electing to ride on mixed trains are charged with knowledge of such facts. It is a matter, of common knowledge that jolting and jarring, are incident to the operation of freight trains, and therefore the company is bound to exercise only the highest degree of care that is usually and practically exercised consistent with the operation of trains of that nature. In this connection it may be also stated to be a. matter of common knowledge that a good deal of switching is necessary when local freight trains stop at a station, and this fact, together with the age and experience in traveling of the passenger, are to be considered in determining whether she is gnilty of contributory negligence in standing in the aisle and talking to a fellow traveler. St. L. I. M. & S. R. Co. v. Brabbzon, 87 Ark. 109, and cases cited; St. L. I. M. & S. R. Co. v. Hartung, 95 Ark. 220; Rodgers v. Choctaw, Okla. & Gulf Rd. Co., 76 Ark. 520; and Pasley v. St. L. I. M. & S. R. Co., 83 Ark. 22. In Pasley v. St. L. I. M. & S. R. Co., 83 Ark. 22, it was held.that, while it is not practical to operate freight trains without occasional jars and jerks calculated to-throw down and injure careless and inexperienced persons standing in the car, jars of great, unusual and unnecessary violence would he evidence of negligence on the part of the trainmen. The injury to plaintiff was caused by the operation of the train of the defendant, and, under our statute, proof of this fact made a prima fade case of negligence against the railroad company. ■ Crawford & Moses’ Digest, § 85:62, and cases cited in foot-note: The defendant attempted to overcome the prima facie case in favor of the plaintiff by introducing witnesses who testified that the coupling of the rest of the train to the caboose in which'the plaintiff was standing at the time she was hurt was not accompanied by any unusual jolt or jar, and in fact was a very easy coupling. On the other hand, the evidence for the plaintiff tends to show that, while she was eighty-two years old, slie had been in good health all of her life, and was a sturdy old woman. She had left the closet, and had only been standing in the aisle a' few minutes 'when the accident occurred. She was talking to a negro woman who-had conducted her from the' station to where the caboose was standing. As the plaintiff expressed it, she had started to her seat when she was “lifted clear up off the floor’,’ and thrown down when the rest of the train was coupled to the caboose. ’ ' The jury might have legally inferred from the evidence for. the plaintiff that the train was coupled together with a jar of'great, unnecessary and'unusual violence. If the evidence for the plaintiff was legally sufficient, if' believed by the jury, to warrant a verdict in'her favor, we are not concerned upon appeal as to where the weight of the evidence was. This was a question for the trial court in determining whether or not a new trial should be granted. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428. It is true that the plaintiff would not likely have been hurt if she had been in her seat, but, under the circumstances as detailed by her, the question of whether she was guilty of negligence was a proper one to have been submitted to the jury. ■ For the error in giving instruction No. 5 at the request-of the defendant the judgment will be reversed, and the cause remanded for a new trial.