| Ark. | Oct 31, 1903
(after stating the facts). This is an action to recover damages which plaintiff alleges that he suffered on account of the negligence of the defendant company. Plaintiff was riding in the caboose of a freight train, and was thrown down and injured by the jar caused by a collision between two parts of the train which had become uncoupled. The circuit judge directed a verdict on the ground that the evidence showed conclusively that plaintiff was guilty of contributory negligence in standing up in the caboose while the train was in motion, and whether this ruling was correct is the main question in the ease. It is conceded that the company had posted in the caboose a notice, plainly printed in large letters, warning passengers not to stand up while the train was in motion. Plaintiff saw this notice, but he says that he did not read it until after the accident. The notice was headed by the words “Warning Notice, Danger," in large capital letters, and was well calculated to attract attention. If, after having seen it, plaintiff failed to read it, the fault was his. The rule was a reasonable one, for it is well known that it is not practicable to operate freight trains without occasional jars and jerks calculated to throw down and injure careless and inexperienced persons standing in the car. This rule, therefore, was necessary to protect passengers on such cars from injury.
But counsel for plaintiff contends that plaintiff, being thirsty, got up from his seat to get a drink of water, and for that reason was not guilty of negligence in being on his feet at the time of the collision. On that point plaintiff testified as follows: After they unloaded the cinders, “I got back in the caboose. About that time I stopped to get a drink of water, and one of the brakeman had dipped some water out of the barrel into the cooler — they put ice in at Bald Knob — and I was waiting a few minutes for the water to cool. The train had started, and I was there a few minutes, and during that time the crash came, and threw me backwards.” Further on, the examination and testimony proceeded- as follows: Q. “What position were you in? A. -I was standing right near the door, looking out, and the cooler was right over to my right, and I think I had my hand on the frame where the cooler was setting. Q. Standing there, looking out, waiting for the water to cool? A. Yes, sir. Q. You stood there how long before this collision? A. As near as I could judge, we run about a mile. Q. Do you know how many minutes it took that train to run a mile ? A. I reckon two or three minutes. Q. And while standing there this collision occurred? A. Yes, sir.” Now, his testimony shows that he stood up in the car from the time the train left the place where the cinders were unloaded until it reached Rio Vista, where the accident happened. The evidence in the case shows that the distance between these two points was about a mile and a half, and that it took the slow-moving freight train in starting and stopping some five or ten minutes to cover this distance. But, taking the statement of plaintiff that it was only two or three minutes as true, still plaintiff was not getting or drinking water during this time. He was standing there waiting for the water to cool. There was no necessity for him to do this. He should have remained in his seat while the water was cooling. Had he done so, it is plain that he would not have been injured. His injury, then, was due in part at least to his own carelessness. We are of the opinion that the circuit court was right in holding that the testimony of the plaintiff himself showed that his injury was due to his own carelessness. The judgment is therefore affirmed.