75 Ark. 479 | Ark. | 1905
There was.evidence to support the verdict. It was a mixed question of law and fact as to whether appellee was liable in damages for the death of Price. There was such substantial conflict in the evidence as to make it entirely proper for the court to submit the questions of negligence and contributory negligence to the jury upon proper declarations of law to be applied by the jury to the facts. Fisher v. W. Va. & Pittsburgh Ry. Co., 23 L. R. A. 758.
The court granted many separate requests for instructions on behalf of appellants, as well as appellee. It would uselessly extend this opinion for us to discuss each instruction given at the instance of appellee to which appellants object. It will suffice to announce the law applicable to such cases, and then to determine whether the instructions, as a whole, conform to the principles announced.
A railway company is not required to accept as a passenger one without an attendant who, from intoxication, is mentally or physically incapable of taking care of himself. But it cannot refuse to receive as a passenger one who is capable of taking care of himself, and whose presence is not dangerous or hurtful or annoying to fellow passengers.
If the conductor of a passenger train accepts one as a passenger, unattended, who, from drunkenness, is unable to look after himself, he, the conductor, in so doing, is acting within the scope of his authority. It is one of the duties of the conductor to pass upon the eligibility, so to speak, of those presenting themselves for transportation.
If a conductor accepts a person as a passenger whom he knows to be unattended, and knows to be insensible from intoxication, and thereby unable to protect himself from danger and injury, the company owes him the duty to exercise such care as may be reasonably necessary for his safety. While the company is not an insurer of the person of one who has been received as a passenger in such condition, being cognizant thereof, it is bound to exercise all the care that a reasonably prudent man would to protect one in such insensible and helpless condition from the dangers incident to his surroundings and mode of travel.
The railroad company must bestow upon one in such condition any special care and attention, beyond that given to the ordinary 'passenffer> which reasonable prudence and foresight demands for his safety, considering any manner of conduct or disposition of mind manifested by the passenger and known to the company, or any conduct or disposition that might have been reasonably anticipated from one in his mental and physical condition, which would tend to increase the danger to be apprehended and avoided. If its servants, knowing the facts, fail to give such care and attention, and injury results as the natural and probable consequence of such failure, the company will be guilty of negligence, and liable in damages for such injury.
The question of contributory negligence could not arise where the undisputed evidence showed the passenger to be mentally or physically incapable of self-protection, and where the railway company had knowledge of such condition when it accepted him as a passenger.
Where the evidence is conflicting, and men of fair judgment and reasonable information might reach different conclusions in considering it, then the questions of negligence and contributory negligence must be determined by the jury as matters of fact.
The doctrine of res ipsa loquitur does not apply in cases where the accident or injury, unexplained by attendant circumstances, might as plausibly have resulted from negligence on the part of the passenger as the carrier. Nor is it applicable to the death of a passenger that comes by reason of circumstances and conditions that are personal and peculiar to him, and not by reason of any management of, or accident to, or condition in, the train itself, over which the carrier has exclusive control. “The true rule would seem to be that when the injury and circumstances attending it are so unusual, and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road, over which the company has entire control, a presumption of negligence on the part of the company usually arises from proof óf such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury.”
Authority for the various propositions of law announced above will be found in 4 Elliott, Railroads, § 1644; Penn R. Co. v. Riaordon, 119 Pa. St. 577; Barnowski v. Nelson, 15 L. R. A. 33, note; Hutch. Car. § § 800-1; Transportation Co. v. Downer, 11 Wall. 129; 6 Cyc. 628-9-30; Thompson, Car. & Pass. 209 et seq., 214; Washington v. M. K. & T. R. Co., 90 Texas, 314; Wood on Railroads, p. 1559 et seq., 1569; 4 Elliott, Railroads, § § 1577, 302, 1330; Thompson on Car. Pass. p. 270-71, 369; 3 Wood, Railroads, § 1207; Croom v. Chicago, Milwaukee & St. P. Ry., 52 Minn. 296, 18 L. R. A. 602, note; Mo. Pac. Ry. Co. v. Evans, 71 Tex. 361, 9 S. W. 325, 1 L. R. A. 476; Milliman v. New York Central & H. R. R. Co., 66 N. Y. 642; 6 Cyc. p. 598, 599, note; Meyer v. St. L., I. M. & S. Ry. Co., 54 Red. 116; Cinn., Ind. St. L. & Chicago R. Co. v. Cooper, 6 L. R. A. 241; Kingston v. Ry., 40 L. R. A. 131, notes; Fisher v. W. Va. & Pittsburg Rd. Co., 23 L. R. A. 758; St. Louis, A. & Terre Haute Rd. Co. v. Carr, 47 Ill. App. 353; Atchison, T. & S. F. R. Co. v. Parry, 73 Pac. 105; Putnam v. Broadway & 7th Ave. R. Co., 55 N. Y. 108; St. Louis, I. M. & S. Ry. v. Martin, 61 Ark. 549; Railway Company v. Sweet, 60 Ark. 550; Railroad Company v. Rexroad, 59 Ark. 180; Little Rock & Ft. S. Rd. Co. v. Duffey, 53 Ark. 602.
Instruction number eight, given at the request of appellants, is not an accurate and complete statement of the doctrine of res ipsa loquitur, as applicable to the facts in this record. But the error presents no ground for reversal, because the instruction was favorable to appellants, and was asked by them, and the verdict was for appellee.
Without expressly approving as precedents all of the instructions in the form given, we think that upon the whole they conform to "the law as herein announced, and fairly presented the issues.
Affirm.
