Railway Co. v. Rexroad

Batti,:©, J. 1. Wife’s competency witness. (after stating the facts.) First. Was the wife a competent witness ? The statute provides that the husband and wife shall be incompetent to testify “for or against each other.” Did she testify for him? This action was brought for the sole benefit of the infant. She was the real party in interest. The husband did not sue, but the infant by him as next friend. He was merely the manager and conductor of the suit for the minor. The court could remove him at pleasure, and substitute another person for him. Mansfiéld’s Digest, sec. 4955. Mrs. Rexroad did not testify for him, but for her child. Bonett v. Stowell, 37 Vt. 260; Lapleine v. Rd. Company, 40 La. An. 663; Van Fleet v. Stout, 44 Kas. 526; Belk v. Cooper, 34 Ill. App. 649. The fact he was liable for costs did not disqualify her. Bonett v. Stowell, 37 Vt. supra. She was a competent witness. Second. Were the instructions properly given? ca]:rl¿utoyh£ ent^cnftoay. In Railway Co. v. Murray, 55 Ark. 254, we said : “ Railroad companies, in the carriage of passengers, are required to use the utmost care and foresight, and are held responsible for the slightest negligence. The first and most important duty incumbent on them is to provide for the safety of their passengers. To this end they are required to provide all things necessary to their security reasonably consistent with their business and appropriate to the means of conveyance employed by them, and to exercise the highest degree of practicable care, diligence and skill in the operation of their trains.” As to the cars and machinery furnished for the carriage of passengers, the fitness of the road-bed, the competency and faithfulness of the servants, and mechanical appliances used to insure safety, the railroad carrier is bound to use the highest reasonable skill and diligence, because the passenger in that respect must rely solely on the carrier, and can do nothing to insure his personal safety. As to the dangers which a passenger of ordinary prudence would foresee and avoid, no duty is imposed on the carrier. In such cases the carrier has the right to rely on human experience, and presume that the passenger will act upon the principles of common sense, and the motive of self-preservation common to mankind, and avoid the danger. The carrier is not bound to anticipate what a reasonable and prudent person, under the circumstances in which it is placed, guided by a reasonable estimate of probabilities, would not have foreseen. In the case of children of tender years, in the care of their parents, upon a train, it would have a right to rely and act on the presumption that the parents would take such care of them as the natural love of a prudent father or mother would prompt them to exercise, under such circumstances. But when its employees operating the trains see that they are or will be exposed, or, seeing them, and exercising reasonable care and diligence, ought to know that they are or will be exposed to danger or injury by the acts or neglects of its servants, it has no right to act upon such a presumptiQii, but it is its duty to use all reasonable and practicable care and diligence to avoid the danger and avert the injury. In such cases the negligence of the parent cannot be imputed to the infant child as contributory neglig'ence for the purpose of relieving the carrier of liability to the child for damages on account of its failure to discharge its duties. Winter v. Kansas City Cable R. Co. 6 Lawyer’s Reports Annotated, 536, and notes ; Wymore v. Mahaska County, ib. 545, and notes; Beach on Contributory Negligence (2d ed.), sets. 116,131, and cases cited. In the instructions given in this case at the instance of the plaintiff, the court told the jury that if the conductor, in passing out of the car in which plaintiff was riding, might, by the exercise of, reasonable diligence, have seen her while standing at the water cooler, near the door, and, knowing that the train was about to stop, closed the door negligently or carelessly, and thereby injured her, the defendant would be liable for damages. According to this instruction, the conductor had no right to rely on the mother taking care of her child, but was bound to use reasonable diligence in seeing that she was not exposed to danger at the time she was injured. This was error, for the reason indicated. Reversed and remanded for a new trial.