Oliver v. Ft. Smith Light & Traction Co.

Wood, J., (after stating the facts.) Rule nine requires the appellant to file “an abstract or abridgment of the transcript setting forth the material parts of the pleadings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to this court for decision. The abstract shall contain full references to the pages of the transcript.” The abstract above set forth is a strict compliance with the above rule. The court directed a verdict for appellee on the facts. It was only necessary for appellant to set forth the pleading and facts to the extent of showing that the court erred in giving a peremptory instruction. This was done. The appellant showed what the issue was, and set forth enough of the evidence to show that it was a question of fact for the jury to determine as to whether or not there was such negligence on the part of appellee toward appellant as would render the former liable to the latter for the injury alleged. As was said by this court in Beavers v. Security Mutual Ins. Co., 76 Ark. 138, “It does not by any means follow that the appellant must set out all the vast volume of testimony.” On the contrary, an abridgment of it is contemplated by the rule, and brevity is commendable where the material point to be decided is brought into the abstract. Now, here the question was whether there was any evidence in the record, when viewed in the most favorable light for appellant, that would have warranted a verdict in in his favor under proper instructions. Giving the testimony abstracted by appellant its strongest probative force in his favor, it shows that he was a passenger on appellee’s car. The seats were full when he boarded the car, but the running or foot boards were down, and there were then only three or four persons on the foot board. After this the car filled till it was very much crowded. The car ran very slowly or had stopped. Appellant disengaged one hand and held on to the post with the other for the purpose of paying his fare, and as he was in the act of handing his fare to the conductor the car started forward with a jerk, causing the crowd on the foot board to surge back and forth and “jerked or crowded appellant off.” One of 'the witnesses whose testimony is abstracted shows that the “car started with a quick jerk and threw appellant off.” The testimony shows that the appellant received a severe injury from the fall. This court in Little Rock Traction & Electric Company v. Kimbro, 75 Ark. 211, announced the duty of common carriers by street railway to their -passengers as follows, quoting from Mr. Booth on Street Railway Law: “A common carrier of passengers by street car is required- to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons employed in that business, in view of the instrumentalities employed and the dangers naturally to be apprehended.” Section 328. “When the cars of street railway -companies stop for passengers to alight, it is the duty of their servants to stop long enough for the passengers to alight, -and to see that the car does not start again while any one is attempting to alight or exposed to danger. Stopping a reasonable time is not sufficient, but it is the duty of the conductor or those in charge to see and know that no passenger is in the act -of alighting or in a dangerous position before putting the car in motion again (citing authorities).” Section 352. This court in the above- -case further said: “But the carriers of passengers by street railways are not insurers of the safety of their passengers, and are not bound absolutely to carry them safely or without injury; nor provide such measures to protect them against accidents and injuries caused by their own acts or omissions, which the exercise of reasonable foresight would not anticipate.” Little Rock Traction & Electric Co. v. Kimbro, 75 Ark. 211. The -appellee, as the evidence tends to show, having slacked the speed of its car, or -stopped same, for passengers to get on and off, was negligent if it started the car forward again with such a sudden jerk as to cause its passengers who were upon the foot boards and exercising ordinary care for their own safety, to surge back and forth, and thus to crowd or throw some of them from the train. Little Rock Ry. & Elec. Co. v. Doyle, 79 Ark. 318; 3 Thompson on Neg. § § 3486, 3514, 3515 and cases cited in note. It may be -necessary, however, under some circumstances for street cars to start up suddenly, and it is not negligence per se for a car to so start. Whether a sudden start is necessary and -consistent with the prudent and proper operation of the car will depend upon the circumstances. “As a general rule, a street railway company is not liable for injuries caused by the starting of its cars, nevertheless it may be liable where the method is unusual and dangerous to passengers.” Booth, Street Railway Taw, § 350. See also § § 348, 349. The law concerning the “riding on step or foot board” is thus announced by Mr. Booth: “It is obviously more dangerous to ride on the step or foot board of a car than to occupy a seat inside. Therefore, it is the duty of a passenger, on boarding a car, if possible, to place himself in a safe position therein, and, if he fails to do so, it will afford him no excuse that it was customary for others to do the same thing, and that he was not warned of the danger of his position and compelled to seek another. If he voluntarily rides on the step or on the foot board of an open car, when there is ample room inside, and while so riding Is injured by a collision with a car on a parallel track or with a vehicle or other obstacle in the street, his negligence is prima facie established, and the onus is upon him to rebut the presumption; but, while such conduct will ordinarily constitute a defense in an action against the carrier, it is no defense to an action against another party for colliding with the passenger. It is not, however, under all circumstances, negligence per se for a passenger, with the knowledge and consent of the conductor and when there is no room elsewhere on the car and no rule of the company is violated, to ride on the step or foot board. ' The carrier may refuse to permit a passenger to ride in that position, but when it accepts him as a passenger and permits him to occupy a place of more than ordinary danger because the car is crowded, it is bound ¡to carry him with a degree of skill, prudence and care proportioned to the dangers to be apprehended. If, under such circumstances, he is injured by the careless management of the car, the question of his negligence should be submitted to the jury.” Booth on Street Railway Taw, § 341. It follows from these principles that while appellant in riding upon the foot board of the car necessarily took upon himself the duty of looking out for and protecting himself against the usual and obvious perils of riding there, such as the swaying or jolting of the car while carefully and prudently operated, he did not assume any risk or danger caused by the operation of the train in an unusual, improper and negligent manner. He assumed the risks ordinarily incident to the position in which he voluntarily placed himself, and the company .would not be liable for any injury 'to 'him while in this position caused by the running of cars, provided at the time of the injury they were being operated with that high degree of care incumbent upon such carriers, as defined i-n the beginning of this opinion. See Topeka City Ry. Co. v. Higgs, 16 Pac. 667. Nor would the company be liable, though negligent, for any injury to which’ the concurring negligence of the party injured also contributed. See Elliott v. Newport Street Railway, 28 Atl. 338; Moskowitz v. Brooklyn Heights R. Co., 89 N. Y. App. Div. 425. We are of the opinion that the court erred in .directing the verdict for appellee. The cause, under the rules above announced, should have gone to the jury for its determination on the evidence. The judgment is therefore reversed, and the cause is remanded for new trial.