Huckaby v. St. Louis, Iron Mountain & Southern Railway Co., 119 Ark. 179

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

119 Ark. 179 | Ark. | 1915

Kirby, J.,

(1) (after stating the facts). The rule is so well established in this State as to be no longer questioned that a prima, fade case of negligence is made out against a railroad company by proof of an injury to a passenger caused by the operation of its train. Section 6773, Kirby’s Digest; Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 548; K. C. Sou. Ry. Co. v. Davis, 83 Ark. 221; St. Louis, I. M. & S. Ry. Co. v. Stell, 87 Ark. 308; St. Louis & S. F. Rd. Co. v. Coy, 113 Ark. 265, 168 S. W. 1106.

And the rule is the same when the injury results from the operation of the train to the passenger while hoarding or alighting from the train. St. Louis, I. M. & S. Ry. Co. v. Stell, supra; Kansas City S. Ry. Co. v. Darvis, supra; St. Louis, I. M. & S. Ry. Co v. Briggs, 87 Ark. 581; Choctaw, Okla. & Gulf Rd. Co. v. Hickey, 81 Ark. 579; St. Louis, I. M. & S. Ry. Co. v. Williams, 117 Ark. 329.

(2) The presumption of negligence arises in a suit brought in this jurisdiction upon proof of the fact of injury to a passenger ¡by the operation of a railroad train in another 'State where no such rule obtains, such presumption relating to the burden of proof and being governed by the law of the forum. St. Louis & S. F. Ry. Co. v. Coy, 113 Ark. 265, 168 S. W. 1106.

It is contended that said instructions 2, 14 and 15 contravene this well established rule of law and that the court erred in giving them.

(3) Instruction numbered 2 only tells the jury that the burden is upon the plaintiff to prove the material allegations of her complaint by a preponderance of the evidence and there was no error in giving it, the plaintiff being required to prove by a preponderance of the testimony that she was injured while attempting to board the train by the sudden lurching or jerking of it. Such facts being proved, the presumption arises that the railroad company was negligent without any further proof of any negligent act upon its part.

This presumption of law, however, does not affect tiie burden of proof nor relieve plaintiff from showing the fact of injury by the operation of the train and the damage resulting therefrom. 16 Cyc. 934-5; Prescott & N. W. Ry. Co. v. Brown, 74 Ark. 607; Railway v. Taylor, 57 Ark. 136; Kirby’s Digest, § § 3106, 3107.

The only question for the jury was whether plaintiff was jerked or thrown down by the starting, jerking or lurching of the train while she was attempting to hoard it as a passenger, and after it had come to a stop for that purpose, and hy instructions 14 and 15, the court only meant to tell the jury that notwithstanding appellant proved ¡she fell and was injured while attempting to board the train, she must go further and establish the fact that the fall was caused hy some negligent act of the railroad company, or, in other words, by the jerking .and lurching of the train after it had stopped to take on passengers, which was the only question of negligence submitted to the jury for their consideration.

If appellant feared that the jury did not understand or might he misled by the particular language of the instruction, she should have made a specific objection thereto and the court would doubtless have eliminated it.

(4) We agree with appellant’s contention that instruction numbered 12 is erroneous and prejudicial. It is not a correct statement of the law relating to the case made. This appellant was attempting to hoard the train after it stopped and during the reasonable time it was supposed to stand for .allowing passengers to embark, and the train was not expected to move, lurch or jerk in such a way as to endanger her safety in so doing, and she assumed no risk of injury therefrom, as the instruction erroneously told the jury. For the error in .giving this instruction, the judgment will be reversed.

Instructions numbered 11 .and 13, relating to the duty of appellee not to hold its train more than a reasonable time for the embarkation of passengers and that contributory negligence upon the part of the plaintiff in attempting to hoard the train, would bar her recovery, appear to be abstract, there being no testimony in the record to support them.

For the error in giving said instruction numbered 12, the judgment is reversed and the cause remanded for a new trial.