Hodge-Downey Construction Co. v. Carson

Kirby, J., (after stating the facts.) It is insisted here that the court erred in giving said instruction No. 4, and we have concluded that the contention is correct. Said instruction tells the jury that, for the protection of persons and property about its yards, a railroad company is held to the greatest degree of care, and also that if the car was not equipped with brakes, or the brakes on the car were not in working order, and defendant, through its agents and employees, bumped the car and started same towards the plaintiff’s horse, and plaintiff did all that a reasonable and prudent' person could do to prevent the injury, they should find for the plaintiff. The court erred in giving this instruction. It is not only abstract, but incorrect. There was no testimony showing that the loose car was not supplied with adequate brakes in good working order, and the instruction requires a higher degree of care of railroad companies for the protection of persons and property rightfully about their stations and trains than, the law demands. A carrier is only bound to the exercise of ordinary care for the protection of passengers while in and about its stations. St. Louis, I. M. & S. Ry. Co. v. Woods, 96 Ark. 311. And it is bound to no higher degree of care for the protection of persons and property who may be rightfully there or about its yards, other than in the capacity of passengers. The question of negligence upon the part of the defendant under the circumstances was one for the jury, and should have been submitted upon proper instructions. Said instruction told the jury that if said car was bumped or started rolling by defendant and not equipped with brakes, or the brakes were not in working order, they would find for the plaintiff, if he was not negligent;in effect, declaring said act of the defendant in failing to have brakes on said car in working order negligence per se, for which a recovery might be had. Other instructions correctly declared the law, but, being in conflict with this one, did not remedy the error and render it harmless. St. Louis, I. M. & S. Ry. Co. v. Woods, supra. The judgment is reversed, and the cause remanded for a new trial. Mr. Justice WOOD dissents, thinking that upon the whole case the judgment is right.