59 Ark. 122 | Ark. | 1894
(after stating the facts). Appellee shows that he was a passenger on appellant’s train ; that, on approaching Waldo, his destination, the name of the station was announced, the whistle sounded, the bell rung, and the train stopped nearly opposite the depot. Appellee supposed the train had stopped to allow passengers to get off ; and, accordingly, he, following several other passengers, proceeded to debark. No notice was given that the train had side-tracked to allow a belated train to pass. No warning of danger was given, or injunction to the passengers to remain seated until the other train should pass. Appellee was fifty-four years old. It was between nine and ten o’clock at night, and very dark to him as he came out of the brightly lighted coach. The train from which he debarked was making much noise, the bell ringing, steam escaping, and air brakes making sound. As appellee reached the ground, he looked across to the depot, and started toward the platform. About the time he got upon the main track, he discovered, for the first time, in a few feet of him, the head light of the south-bound engine, but it was then impossible for him to get out of the way. The train was running fifteen or twenty miles per hour. The bell of this engine was not ringing. Appellee was run over, and his foot so mangled as to necessitate amputation. This is the case which appellee makes by his own evidence and that of his son, and, in some respects, his testimony is corroborated by other witnesses.
The appellant, on the other hand, shows that the passengers were notified that the train had side-tracked to allow the south-bound train to pass, and were requested to remain seated until the train should be backed up to the depot platform on the main track. That the whistle was sounded and bell was ringing on the engine that did the injury. Train was running three or four miles per hour. Appellee could have seen and heard it, had he looked and listened, and was notified, even after he got upon the main track, in ample time to have escaped, had he not negligently failed to do so. We are asked, upon this state of the contention, to review the verdict of the jury. It is impossible for the appellate court to bring truth out of so much palpable contradiction. That was the province of the jury and the trial judge. To us it appears, from the number of the witnesses, and the logical and reasonable conclusions to be drawn from their testimony, that the preponderance was decidedly in favor of appellant oh the facts. But preponderance is not determined by numbers alone. The circuit judge, having refused to set aside the verdict, indicates that he regarded the finding of the jury as just and correct. There was certainly evidence sufficient to support the verdict.
The charge of the court in the first part of the r . . . , tourth instruction was not correct, m that it permitted the jury, in weighing the evidence, to regard the mere personnel of witnesses, rather than the subject matter of their testimony, when both should be considered. But whatever defect there was in this particular was cured by the second prayer given at the instance of appellant, in which the court told the jury “that they must not discredit any witness arbitrarily, nor discard or depreciate the testimony of witnesses merely because they were in the employ of the defendant company.”
As to other instructions, it is sufficient' to declare , . , 4 what the law is upon the question involved, without commenting upon them separately. This court, in Railway Co. v. Cullen, 54 Ark. 431, held “that a traveler upon the highway is bound to exercise ordinary care and diligence,at the intersection of a railway, to ascertain whether a train is approaching, in order to avoid collision with it. * * * A failure to look and listen is therefore evidence of negligence on hi's part.” Such is the general rule, as settled by the authorities, enjoining a positive duty of care upon those who would pass over a railroad track to look and listen. A failure to take such precaution before attempting to pass over is negligence. Casey v. Canadian Pacific R. Co. 37 A. & E. R. Cases, 172; Penn. R. Co. v. Beale, 23 P. F. Smith, 504; Nagle v. Allegheny Valley R. Co. 88 Penn. St. 35; Penn. Ry. Co. v. Matthews, 7 Vroom, 531; Gratiot v. Mo. Pacific R. Co. 49 A. & E. R. Cas. 398.
But where trains have stopped at stations for the purpose of allowing passengers to make their entrance and exit, the rule is different. The very fact that the name of the station has been called, and the train brought to a standstill soon thereafter at the station, is tantamount to saying to the passenger, “ The way is open, and you may alight in safety.” The duty of the passenger, under such circumstances, is not the positive one of first ascertaining whether there is danger ahead, before he undertakes to get on or off the train, as the case may be, because he may act upon the implied assurance that all obstructions and interruptions of a dangerous character have been removed.- In other words, he may assume that the railroad company has done its duty to provide him safe landing. B. & O. R. Co. v. State, 60 Md. 449; Philadelphia, etc., R. Co. v. Anderson, 20 Atl. Rep. 2; Columbus, etc., R. Co. v. Farrell, 31 Ind. 408; Bridges v. Ry. Co. L. R. 6 Q. B. 377; Lewis v. Ry. Co. L. R. 9 Q. B. 66; Hutchinson on Carriers, sec. 616; Klein v. Jewett, 26 N. J. Eq. 474. See Memphis & Little Rock R. Co. v. Stringfellow, 44 Ark. 322, and cases there cited, as to effect of announcing name of station ; see also, Terre Haute, etc., Railroad v. Buck, 96 Ind. 346, as to implied invitation to alight; also, Smith v. Ry. Co. 88 Ala. 538.
As was said in Brassell v. N. Y. C. & H. R. R. Co. 84 N. Y. 24 : “A passenger, when taking or leaving a railroad car at a station, has a right to assume that the company will not expose him to unnecessary danger; and while he must himself exercise reasonable care, his watchfulness is naturally diminished by his reliance upon the discharge by^ the company of its duty to passengers to provide them a safe passage to and from the train.” Terry v. Jewett, 78 N. Y. 338; A. T. & S. F. Ry. Co. v. Shean, 18 Col. 368.
The passenger may act upon such reliance. He is not required to look out for and anticipate danger, as in the case of one, not a passenger, crossing at a public crossing or elsewhere. His alertness may be lessened by the implied invitation of the company to alight, and he may fail to take the precaution which would be demanded of him under other circumstances. But the duty of the railroad company will not relieve the passenger from the exercise of ordinary care in avoiding an actual, obvious or known danger, or excuse any reckless conduct on his part. Even the grossest negligence of the company would not justify recovery, if the passenger, under all the circumstances of the injury, is shown to have been guilty of contributory negligence. Rose v. N. E. Ry. Co. L. R. 2 Ex. Div. 248; Whittaker’s Smith on Neg. 314; Archer v. N. Y. etc. R. Co. 106 N. Y. 589; Chaffee v. Boston & Lowell R. Co. 104 Mass. 108.
In Balt. & Ohio R. Co. v. State, 60 Md. 462, it is stated: “In each case the special facts and circumstances must be considered, and their bearing upon the propriety of the conduct of the party injured, except where the facts are clear and undisputed, must be submitted to the jury for their consideration. * * * And, in considering the facts, the question of ordinary care on the part of the party injured is not to be determined in an abstract way, but relatively, as it may be connected with and dependent upon the duty and obligation of the defendant.” Penn. R. Co. v. White, 88 Penn. St. 327; Gaynor v. Old Col. etc. Ry. Co. 100 Mass. 208; Robostelli v. New York, etc. R. Co. 33 Fed. Rep. 796.
The question of the negligence of the company and of the appellee was submitted in this case upon instructions even more liberal to appellant than were justified by the authorities. Those given for appellee are not strictly correct, in that they lose sight of the theory presented by appellant—that appellee knew the train had side-tracked, was warned of danger, and consequently was negligent in going where he did. But when taken in connection with those given for appellant, especially the 13th as modified by the court, they state the law substantially as above declared. The court did not err in refusing the fourth and sixth for appellant, nor in any of the modifications it made to instructions asked on its behalf.
The judgment of the Columbia circuit court is therefore affirmed.
