Simmons v. Lusk

Hart, J., (after stating the facts). (1) Counsel for the defendants seek to uphold the judgment by invoking the rule that where the bill of exceptions does not affirmatively show that it contains all the evidence and there is no language from which it is naturally and necessarily inferred that it contains all the evidence, the rulings of the court upon the evidence and instructions are presumed to be correct. Bowden v. Spellman, 59 Ark. 251. In that case the bill of exceptions began as follows: “Be it remembered that, on the trial of this cause, evidence was introduced tending to show the following state of facts. ’ ’ The court held that the statement was not conclusive that there were not other facts shown on the trial which if brought before this court would sustain the rulings and judgment of the lower court. In other words, the court held that the 'bill of exceptions in that case only showed by implication that there were no other facts shown. Here the bill of exceptions is essentially different. We quote from the bill of exceptions as follows: “On the trial of the above cause at the June, 1916, term of the above styled court, the following proceedings were had: “The plaintiff introduced testimony to establish the several allegations of her complaint. “The defendants introduced testimony to disprove each and every allegation of plaintiff’s complaint. “On the trial of the causé, the court gave the following instructions on behalf of the plaintiff.” This is not as definite and certain as a bill of exceptions ought to be where a reversal is sought for a failure of proof. It is true that the bill' of exceptions does not follow the proper practice by expressly stating that it contains all the evidence introduced, but it does appear .with reasonable certainty that no other evidence was introduced. It states that the plaintiff introduced testimony to establish the several allegations of the complaint. That the defendant introduced testimony to disprove each and every allegation of the plaintiff’s complaint. Then follows the instructions given by the court. From this the natural inference would be drawn that no other testimony was introduced than that referred to, and we think the bill of exceptions was sufficient to present the errors for which a reversal of the judgment is sought. Overman v. State, 49 Ark. 364; Hibbard v. Kirby, 38 Ark. 102; Leggett v. Grimmett, 36 Ark. 496; Walker v. Noll, 92 Ark. 148. It is next contended that the court erred in giving instruction No. 7, which is as follows: “If you find from the evidence that the plaintiff was invited to get on this train at Monett and was required to leave the train at Winslow because it did not stop at Mountainburg, and that this caused the injury complained of, this would not be the proximate cause of the injury, unless a man of ordinary care and prudencé would, or should, have anticipated injury to her from allowing her to ride on this train as far as Winslow.” (2-4) We think the court erred in giving this instruction. A railroad company may make a rule to require passengers to purchase tickets before entering the cars, provided reasonable opportunities are offered to comply with it. St. Louis & San Francisco Ry. Co. v. Blythe, 94 Ark. 153; St. L. S. W. Ry. Co. v. Hammett, 98 Ark. 418. Here the railroad company had a rule requiring- the passengers to exhibit their tickets to the train porter or brakeman before they were allowed to enter tbe car. Tbe' train man was placed there by the company to enforce its rules and prevent passengers from entering a train upon which they did not have transportation. It was in the line of his duty to give information and to make representations in reference to the rights of passengers holding tickets entitling them to transportation over its line of road. It would be a strange state of affairs if the agent had authority to prevent the passenger from entering a train, who did not have proper transportation, and still not have the authority to give reasonable and proper information concerning trains upon which such tickets might be used and the places where the train would stop and discharge passengers. When the train man told plaintiff her ticket was good on that train and that the train would stop at Mountainburg to allow her to get off, the company was bound by his representations in the absence of knowledge on the part of the passenger that the information given was not correct. C., R. I. & P. Ry. Co. v. Blundell, 127 Ark. 82; Hutchinson v. Southern Ry. Co., 140 N. C. 123, 6 A. & E. Ann. Cas. 22; Louisville & Nashville Rd. Co. v. Scott, 141 Ky. 538, Ann. Cas. 1912, C-547, and case' note. This principle was also recognized in St. L., I. M. & S. Ry. Co. v. Atchison, 47 Ark. 74, where the court held that where a passenger is misled by an agent authorized to speak for the company, he has his action against the company for the misdirection, and also in Railway Company v. Adcock, 52 Ark. 406. A reading of instruction No. 7 shows that it is in direct conflict with this rule. It is true at the instance of the plaintiff correct instructions on this phase of the case were given, but the court has uniformly and repeatedly held that it is error to give conflicting instructions. We need only cite a few cases on this rule. Brunson v. Teague, 123 Ark. 594; Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140; McCurry v. Hawkins, 83 Ark. 202. For the error in giving instruction No. 7 the judgment must be reversed and the cause remanded for a new trial.