St. Louis, Southwestern Railway Co. v. Wyman

Wood, J., (1-3) (after stating the facts). I. The appellant contends that the effect of the instructions numbered 1 and 2, given at the instance of the appellee, was to make appellant’s liability depend upon the issue as to whether or not the employees of appellant were negligent in the operation of the train, and that these instructions excluded from the jury the issue of contributory negligence. The court, in instructions on its own motion, told the jury that the theory of appellant’s defense was that the allegations set up by the appellee in his complaint were not true, and that he was not injured, or “if he was injured, it was caused by his own negligence. ’ ’ When the instructions are considered together, as they must be, they are not open to the criticism which appellant makes of them. By the instruction given on the court’s own motion, and the first instruction given at appellee’s request, the court submitted to the jury the issue of contributory negligence. Appellant made only a general objection to instruction No. 1. If appellant conceived at the trial, as it now contends here, that this instruction was too restricted to submit the issue of contributory negligence, its duty to the trial court was to point out the particulars wherein it claimed the instruction was defective. By these instructions, the court grounded the appellee’s right to recover upon the fact that appellant was negligent, and that he was without fault. They were told “your verdict would be for the plaintiff if you believe that the plaintiff was without fault, ’ ’ etc. While this direction was couched in general terms, it conveyed to the jury, in connection with the instruction given on the court’s own motion stating the issues by the respective parties, the idea that the appellee’s right to recover depended upon the issue as to whether or not ihe was free from contributory negligence. True, the court, if requested, should have framed instruction No. 2 so as to have embodied the idea that appellee was not entitled to recover if the jury found from the evidence that his own negligence contributed to cause the injury of which he complained. But the appellant made no such specific request as this, and it is manifest when these instructions are considered as a whole that the jury were not authorized to render a verdict in favor of the appellee if they found from the evidence that his own negligence contributed to the injury. While the instructions were not strictly in technical form, the criticism to be made of them relates more to verbiage than substance, and it was the duty of the appellant, if it desired the instructions put in more accurate verbiage, to present a correct prayer for instruction -on the issue of contributory negligence; or, as before stated, to point out by specific objections to the court below the defect it now urges to these instructions. (4-5) Instructions numbered 1 and 2, giveq at the instance of the appellee, and instruction numbered 3, given at the instance of the appellant, presented the law applicable to such cases, in conformity with the doctrine announced by this court in St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220; Arkansas, etc. Rd. Co. v. Wingfield, 94 Ark. 75; St. Louis S. W. Ry. Co. v. Jackson, 93 Ark. 119, and cases cited. (6-7) II. Appellants’prayer for instruction No. 2, in effect told the jury that if the appellee arose to his feet and was standing up before the train came to a full stop, he was guilty of contributory negligence, and could not recover. The court did not err in refusing to grant this prayer. Even though the jury might have found that the appellee arose to his feet before the train came to a full stop and that he was standing in the aisle before the train came to a full stop, this would not constitute contributory negligence as a matter of law, and it would still be a question for the jury to say under the circumstances as to whether the appellee was guilty of negligence. In Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22, Judge Riddick, speaking for the court, said: “It can not 'be said as a matter of law that every time a passenger on a freight train arises from his seat he is guilty of negligence. It is only when his standing is so protracted or so uncalled for that the court can say as a matter of law that it was unnecessary and imprudent that the question of his negligence will he taken from the jury. ” It can not he said as a matter of law that passengers on mixed freight and passenger trains are guilty of con-. tributory negligence if they arise from their seats before these trains come to a full stop at the stations which are the destinations of such passengers. As to whether they are guilty of contributory negligence would be a question depending on the circumstances. The speed the train is making at the time it approaches the station; the length of time the passenger has been standing before the train comes to a stop at his destination; the obstructions that are in his way, the causes actuating him to arise to his feet; and, in fact, all the surrounding conditions are to be considered. The mere fact that a passenger has been warned by a notice posted in the train not to arise before the train comes to a full stop would not make him guilty of contributory negligence as a matter of law if he failed to heed such warning. It would be the duty of the jury, of course, where such warning was posted and where it was shown that the passenger had, or by the exercise of ordinary care could have had, knowledge of such warning, to take into consideration these facts in connection with the other circumstances in determining whether or not the passenger was guilty of contributory negligence. And if the undisputed evidence showed that the passenger, having such warning, arose from his seat and stood in the car an unreasonable length of time, then it would be the duty of the court to declare as a matter of law that the .passenger was guilty of .contributory negligence. See St. Louis, I. M. & S. Ry. Co. v. Harmon, 85 Ark. 503. In cases where the uncontroverted evidence shows that no man of ordinary prudence under the circumstances would have arisen to his feet and stood while the train was still in motion, notwithstanding a warning given against such conduct on the part of the passenger, then the court may declare as a matter of law that the passenger was guilty of negligence contributing to his injury and direct the jury to so find. Such, for instance, was the case of Krumm v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 590. (8) But this is not like that case. Here the question as to whether or not appellee was guilty of contributory negligence was properly submitted to the jury, just as it was in the cases of St. L., I. M. & Sou. Ry. Co. v. Richardson, 87 Ark. 101; St. L., I. M. & Sou. Ry. Co. v. Brabbzson, 87 Ark. 109; St. L., I. M. & Sou. Ry. Co. v. Gilbreath, 87 Ark. 572; St. L., I. M. & Sou. Ry. Co. v. Billingsley, 79 Ark. 335; St. L., I. M. & Sou. Ry. Co. v. Hartung, supra; and St. L., I. M. & Sou. Ry. Co. v. Taylor, 74 Ark. 31. (9) III. The court did not err in refusing appellant’s prayer for instruction No. 4. There was no testimony to warrant the jury in finding that the appellee’s injury was caused by reason of the slack or voluntary movement of the train after it had stopped. True, the testimony showed that there were sixteen cars in the train, and that when a train of that character was stopped and the air released, there would be “a little slack,’’ and in a train of that length that the slack would be about six and two-thirds feet; but there was no testimony to show that this slack would produce a sudden and violent movement of the train after the samé had stopped. On the contrary, the testimony on behalf of the appellant showed that there was no violence whatever.” The conductor stated: ‘ ‘ There was no violence whatever. ’ ’ The uncon-tradicted evidence was that appellee’s injury, if he was injured, was caused by a sudden jerk, and in the absence of testimony tending to show that the sudden jerk was or could have (been produced by the inherent construction of a train of that character, or by the slack or voluntary movement of the train after it was stopped, there was no testimony upon which to predicate a finding that the injury was produced by the voluntary movement of the train, and the instruction was therefore abstract. Moreover, even if the instructions were not abstract, the appellant got the benefit of the direction sought to be conveyed by it in the instructions which the court gave, in which the jury were told that appellee assumed the risk of the “necessary and usual jolts and jars,” the “risk incidental to the stopping and starting of such trains. ’ ’ The appellant was therefore not prejudiced by the ruling of the court. (10) IV. We are unable to say that the verdict is excessive. The credibility of the witnesses who testified as to the nature of appellee’s injuries was for the jury. They have accepted the testimony of these witnesses; and giving the testimony its strongest probative force in ap-pellee’s favor, it was sufficient to sustain the verdict. The appellee’s testimony showed that he was severely injured in his back and hip. He was confined to his bed for five weeks, and his suffering was intense. The testimony of physicians who attended him tends to show that his injury was serious and his suffering severe. We find no basis in the testimony to warrant us in reducing the amount of the verdict. The judgment is therefore affirmed.