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

Hart, J., (after stating the facts.) There are three propositions presented for our consideration. 'First. Was the appellee injured by a jerk or jar of great, unusual and unnecessary violence? A drummer named Hawley and plaintiff were the only persons in the car at the time the injury was received by the plaintiff. Hawley testified that he was in the habit of riding on local freights, and that it was the heaviest jolt he ever got on a car. That it jarred the papers and a pencil off of the desk on to the floor and threw him against the wall. That he saw plaintiff fall, and that she scrambled around and managed to get upon the seat and laid down. That the jar was caused by the engine backing cars to which it was attached against cars to which the caboose was attached. Appellee testified that she had never ridden on a freight train before, but that she knew that when one began to move the movement was always accompanied by a jerk or jar, and on this account she started into the caboose. The jar came after she had caught hold of the door, and it came with such violence that, although expecting it, she was thrown to the floor with. great force. Appellant adduced testimony tending to show that there was not an unusual violence, hut it is not our province to pass upon the weight of the evidence. Taking into consideration the testimony of Hawley, who had had considerable experience riding upon freight trains and especially the one in question, coupled with the testimony of appellee that, although expecting a jar, she was jerked loose from her hold on the door and thrown with great violence on the floor, we are of the opinion that there was sufficient testimony to submit the question to the jury. . Second. Was the appellee guilty of contributory negligence in leaving her seat and going out on the back platform of the caboose at the time and under the circumstances under which it was done? In the case of Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22, the court said: “It cannot be said as a matter of law that every time a passenger on a freight train arises from his seat he is guilty of contributory negligence; it is only when his standing is so protracted or uncalled for that it is unnecessary and imprudent that thé question of his negligence will be taken from the jury.” In the present case, appellee had heard one of the trainmen say that they would stop at the station for 30 minutes. The crew had left the train, and before hardly more than half the time before she expected them to return had elapsed, and before she had in fact seen any of the men.come back to the train, it was suddenly started. Under these circumstances, the appellee being a young able-bodied woman, the question of her contributory negligence was also properly left to the jury. Third. At the request of appellee over the objections of appellant, the court gave the following instruction: “The care required by passengers is such as reasonably prudent persons exercise under the same circumstances. A passenger on a freight train is not absolutely required to sit at all times, and especially while the train is not in motion. They are, when the train is not in motion, entitled to notice of the starting of the train. So, in this case, if you believe from all the facts and circumstances in evidence the plaintiff was acting as a reasonably prudent person, she would be entitled to recover although she was standing.” Counsel' for appellant now object to this instruction because the court told the jury that appellee was entitled-to notice of the starting of the train. The objection, is well taken, had it been made at the trial in the court below. But appellant made a specific objection to the instruction in the trial court as follows: “Because it was in direct violation of defendant’s printed rules, and because the proof does not show that the plaintiff was on the platform through necessity or for convenience.” Counsel for appellant, having confined his exception to the grounds specified by him, has waived all other grounds. Kahn v. Lucchesi, 65 Ark. 371; Stein v. Ashby, 30 Ala. 363. Having already determined that the question of contributory negligence of the plaintiff in going out on the platform was properly submitted to the jury, it is sufficient here to say that appellant’s specific objection to this instruction is not tenable. The judgment is affirmed.