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

Hart, J. (after stating the facts.) The principal contention of appellant is that the trial court erred in instructing the jury that if it should find from the evidence that appellee fell while entering appellant’s train by reason of the running or moving of said train, and was injured thereby, then the presumption is that the appellee received said injury on .account of the negligence of appellant, provided appellee was not guilty of contributory negligence himself. There was no error in this. A like instruction was approved by this court in the case of Choctaw, Oklahoma & Gulf Rd. Co. v. Hickey, 81 Ark. 579. That was a case where the injury was caused by sudden jerk of the train which threw the passenger from the steps of the coach while he was attempting to board the train. ■ In the case of Kansas City Southern Ry. Co. v. Davis, 83 Ark. 217, the court said: “The principal attack is made on the first instruction, which is copied in the statement of facts. Appellant argues that this instruction is only proper when the negligence of the company is a failure to obey the lookout statute. Section 6607 of Kirby’s Digest. But counsel are in error in this, for it has been held that under section 6773 of Kirby’s Digest, placing responsibility upon railroads where injury is done to persons or property by the running of trains, a prima facie case of negligence is made out against the company operating the train by the proof of the injury. This was a case where the passenger was injured while getting off the train. But there is no difference in the principle as applied to passengers embarking or debarking from. a train. The reason of the rule is that the railroad company has sole control of the movement of its trains, and in that respect the passenger can do nothing to insure his personal safety. Appellant also complains that the court did not give the instructions on contributory negligence asked by it, but the instructions given by the court fully covered that phase of the case. The relative duty to each other of common carriers and of passengers about to embark on railroad trains was correctly' given to the jury by the court in accordance with rule announced by this court in the case of Barringer v. St. Louis, Iron Mountain & Southern Ry. Co., 73 Ark. 543. Appellant assigns as error the reading of the deposition of Dr. Barlow to the jury for the reason that some of the interrogatories propounded to him were leading questions. This was a matter within the discretion of the trial court, and, besides, an examination of the record does not disclose that any prejudice resulted to appellant therefrom. Appellant also objects to the testimony of appellee in regard to his expenses for doctor’s bill because he was unable to testify what amount he had or would have to pay out therefor. Appellee stated that his physician had not presented his bill, and that he did not know what amount he would charge. He testified what services the physician rendered, and, in the absence of any knowledge on his part of the amount that would be charged, the jurors were as competent as he to determine from their common knowledge and experience what such services would cost him. There was sufficient testimony to submit the issues to the jury, and its finding will not be disturbed. Judgment affirmed.