102 Ark. 499 | Ark. | 1912
This is an action instituted by D. M. Watson against the Kansas City Southern Railway Company and the Memphis, Dallas & Gulf Railroad Company to recover damages for an injury which the plaintiff alleged he sustained by reason of the negligence of both defendants. The alleged injury occurred upon the station platform at Ashdown. At this place there was only one depot, which was owned by the Kansas City Southern Railway Company but which was used by both defendants. At this depot the trains of both defendants stopped and took on and discharged passengers, and agents of both companies sold tickets there for their respective trains. On the day the injury was received, plaintiff purchased a ticket at this depot from the agent of the Memphis, Dallas & Gulf Railroad Company. It was about the time for the departure of his train, and plaintiff went from the waiting room to the station platform in order to go to said train, which was located on the second track. At this time a local freight train of the Kansas City Southern Railway Company was standing on the first track, and freight was being unloaded therefrom. As plaintiff passed over the station platform, he stopped a few moments to talk to a friend, and, while thus engaged, a railroad employee pulled a baggage truck along the platform and suddenly dropped its tongue. The truck was going with such rapidity that it struck the plaintiff on his leg, just above the ankle, and painfully injured him. The testimony tended to prove that when plaintiff saw the truck thus turned loose, he sprang aside, upon another truck which was standing nearby on the platform, in order to escape from the impending injury, and was there struck by the truck. The testimony on the part of the defendants tended to prove that the employee who was in charge of this truck was in the service of the Kansas City Southern Railway Company. A verdict of $150 was returned in favor of plaintiff and against both defendants, and both of them have appealed from the judgment rendered thereon.
It is urged by both defendants that plaintiff was guilty of negligence contributing to his injury, and for that reason was not entitled to recover. The court instructed the jury that plaintiff could recover only in event he exercised due care for his own safety, and under the facts of this case we think it was a question peculiarly for the jury to decide as to whether or not he was guilty of contributory negligence. The mere fact that the plaintiff went from the waiting room on to the station platform and there remained for a few moments talking to a friend on his way to his train did not constitute negligence as a matter of law upon his part. Chicago & A. Rd. Co. v. Wooldridge, 32 Ill. App. 237. Nor did the act of plaintiff in jumping on to the truck nearby to escape the danger which appeared impending constitute negligence as a matter of law upon bis part. The mere fact that there was more than one way to escape from the apparently impending peril, arid that plaintiff in the emergency chose the one which was less safe, would not characterize his act as one of negligence as a matter of law. Railway Co. v. Murray, 55 Ark. 248; Railway Co. v. Maddry, 57 Ark. 306; St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241. Under the facts and circumstances adduced in evidence upon the trial of this case, we are of the opinion that the question as to whether or not the plaintiff was guilty of any negligence which contributed to his injury was one for the jury to determine.
It is urged that the amount of the verdict returned by the jury is excessive. The plaintiff was injured on his leg just above the ankle. He was struck by the truck, which cut a gash to the bone. It caused the plaintiff severe pain, and, while he was able to continue his work, it lamed him for at least ten days, and gave him a great deal of pain for several weeks. Three weeks after the injury was received, a physician examined the wound, and found that the outer bone had a knot on it, and that this portion of his leg was swollen and discolored, and that he still suffered pain therefrom. For the pain and suffering thus endured by him and the lameness which was thus caused by the injury, we can not say that the amount of the verdict returned by the jury was excessive.
Upon an examination of the whole record, we find no prejudicial error which was committed in the trial of the case. The judgment is accordingly affirmed.