55 Ark. 428 | Ark. | 1892
This was an action to recover damages for personal injuries sustained by the plaintiff while leaving the defendant’s car, into which he.had gone to escort a woman and child and assist them with their hand-baggage to .a seat/
The matters charged in the complaint to cast liability upon the defendant are as follows : First, that the defendant did not stop its train the usual length of time or a reasonable time for persons to get on and off, and by reason, thereof the plaintiff fell from the step and was injured while attempting to leave the car; and, second, that while he was engaged in leaving the car the train started with a sudden jerk and defendant’s porter gave him “ a violent thrust” with his elbow, by reason whereof he was violently thrown to the platform of the depot and badly hurt.
The questions arising upon the latter ground had better be disposed of at the outset, for as to them we find little difficulty in reaching a conclusion. According to the evidence, including that of the plaintiff himself, the sudden jerk, if there were any, occurred while he was in the car, and caused him no injury; it certainly had no connection with the hurt he received in being subsequently thrown from the steps of the car. The porter’s thrust was given as he stepped upon the car to resume his trip, and it is not alleged in the complaint nor shown by the evidence that it was due to his careless or wilful neglect. It appears that he acted as porters usually do in getting upon a train that is starting upon its course; and, as it was his duty to get aboard, and there is no evidence that he did it in an improper manner, it discloses no negligence. The instructions which based a right of recovery upon this ground were improper, and should not have been given.
In the case of the Louisville & Nashville R. Co. v. Crunk, 21 N. E. Rep., 31, the Supreme Court of Indiana held that a railroad company owed the same duty to those assisting a passenger upon a train as to the passenger himself; but it cites no precedent for the ruling, and it is opposed to all cases adjudged upon the subject to which our attention has been called. The law exacts from railroads for the protection of passengers the highest degree of care, and imposes a liability for all injuries which sound judgment, skill and the most vigilant oversight could have prevented ; but this responsibility grows out of the relation or contract of carrier and passenger on account of the great perils of the undertaking. As this is the cause and origin of the rule, it would seem that the rule should be restricted in its application to persons who come within that relation, and such is the effect of the authorities. Lucas v. New Bedford R. Co., 6 Gray, supra; Doss v. Mo., etc., R. Co., 59 Mo., supra; Coleman v. Ga. R. Co., 84 Ga., supra; Griswold v. Chicago, etc., R. Co., 26 N. W., 101; Thompson on Car. Pas., p. 49, sec. 7.
But a denial that the extreme responsibility contended for exists is not an affirmance of the rule that responsibility is restricted to wrongs that are wilful or wanton. Such conclusion would rest upon the premise that one attending a passenger enters the car from curiosity or upon his own-business under a mere license from the company, and not upon business connected with the company upon an implied invitation. If this premise be false and the converse correct, then, according to the decisions of this and other courts, the carrier would be bound to the exercise of ordinary care (St. L., I. M. & S. Ry. v. Fairbairn, 48 Ark., 491 Holmes v. N. E. R. Co., L. R., 4 Exch., 254); and that it is so bound in cases like this is held in the cases first cited, as well as in others upon the subject. Gillis v. Penn. R. Co. 8 Am. L. Reg. (N. S.), p. 729; S. C. 59 Penn. St., 129; Griswold v. Chicago, etc. R. Co., 26 N. W., supra
But although we think the attendant is entitled to demand ordinary care for his protection, and would be entitled to recover for an injury caused by its omission, still he could not recover unless he established that his injury was caused by some negligent act or omission on part of the carrier. The word “ negligence ” implies a duty as well as its breach, and the fact can never be found in the absence of a duty. Assuming then that the plaintiff went upon the train to render necessary assistance to a female passenger and child, and that those in charge of the train knew that he was upon it, was it the duty of defendant to hold the train the full length of time that was usually required for passengers to get off and on the cars at that place ? The court charged the jury that it was, and this presents the controlling question upon this appeal.
We frequently find the statement of a rule that trains must be stopped a reasonable time for all passengers who desire to stop at the station to get off and outgoing passengers to get on and, when applied in a-proper case, the rule is no doubt sound. But the rule is designed for the benefit of passengers only who desire to end or begin their journey, and cannot be invoked as a ground for recovery by other persons.
If one, intending to transact important business with a passenger, should be disappointed by reason of an unusually short stop, he could not invoke the rule, although a stop for the usual time would have benefited him greatly; nor could the passenger complain for the failure to stop, unless it was the station of his destination. And even as to pássengers, the rule does not require a stop for any usual, stated time, but only for a reasonable time to permit those who desire to stop to get off and outgoing passengers to get on. It is obvious that this time would vary, and that a stop which would be reasonable at. one time when there were but few desiring to get on or off would be unreasonable at another when there were many; but it is the duty of passengers, when the train stops, to proceed with reasonable expedition to get off or on, as they desire, and if sufficient time for this purpose be given, the rule stated requires no longer stop, and the train may resume its progress. We do not think this rule can be invoked to sustain the plaintiff’s claim. But one who goes upon the train to render necessary assistance to a passenger in conformity to a practice approved or acquiesced in by the carrier, in its interest and upon its implied invitation as before stated, has a right to render the needed assistance and leave the car, and the railroad in permitting him to enter it with knowledge of his purpose is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor. Griswold v. Chicago, etc. R. Co., 26 N. W., supra.
But the duty is dependent upon the knowledge of his purpose by those in charge of the train; for, without such knowledge, they may reasonably conclude that he entered to become a passenger, and cause the train to be moved after allowing him a reasonable time to get aboard. The law could not, in reason or justice, impose as a duty the doing of that which, in the light of everything known to the trainmen, would not appear necessary or proper, nor hold that the cars should be stopped when there was no reason to stop them except a fact unknown to them. If the attendant intended to become a passenger, he had no reason to ask a ■continued stop; and if he desired to get off, and that alone made a longer stop necessary, he could not expect or ask that it be made where no occasion for it was known- to those in charge. Even where a passenger desires to stop at an •intermediate station, he must make his desire known; and if he neglect this, he cannot complain if he is carried past his station. Griswold v. Chicago R. Co., 26 N. W., supra; Coleman v. Ga. R. Co., supra. If such notice is required of passengers, it should, with at least equal reason, be exacted of others, and we are of opinion that it is essential to fix a duty in that regard.
Tested by the rule above announced, the court properly refused the second, fourth, sixth and seventh instructions-asked by the defendant, and committed no error in modifying the fifth, eighth, and ninth ; the appellee concedes that, the third announced the law but contends that it was covered by other parts of the charge; we have therefore treated it as correct and the court will see upon a re-trial that the-charge given covers it.
The instructions for plaintiff all embody the principle-that it was the duty of the defendant to stop the train the-usual length of time for permitting passengers to alight and embark, regardless of defendant’s knowledge that plaintiff wished to get off, and that the omission thereof might be the basis of a recovery; whereas, we hold that there was no-duty to hold the train without such knowledge, and that, if the duty existed, it was to hold the train long enough to-permit plaintiff to go on, assist the woman to a seat and then, get off.
For the errors in charging the jury the judgment will be-reversed, and the cause remanded. As the evidence upon-another trial may differ materially from that disclosed by the record, we have not determined whether it would justify a finding for the plaintiff; but lest our silence be misconstrued, we deem it proper to state that the judges have-.suggested doubts upon their part whether the plaintiffs’ own testimony did not establish such imprudence and recklessness upon his part in attempting to leave the train after it was in motion as would preclude a recovery, even if the •defendant is shown to have been guilty of negligence.
Compare McKone v. Mich. Cent. R. Co., 51 Mich., 601; Cent. R. & B. Co., v. Letcher, 69 Ala., 106; Keokuk Packet Co. v. Henry, 50 Ill., 269. —[Rep.
The notice referred to in the opinion is as follows :
“ Special Notice.—All persons not having business with the company are hereby positively forbidden to enter, sit, stand or walk upon the railroad, side tracks, turn-tables, right of way, depots, platforms, or to get upon or ride on any of the locomotives or cars of the Missouri Pacific Railway, leased and operated lines.
“And all such persons, whether children or adults, are hereby notified that they have no legal right to do such things, and that in every such case they are trespassers.
“All persons are hereby positively forbidden to enter or go in or upon any of the said places, or in or upon any of the property of this company to transact their own private business of any and all kinds, and all such persons who disobey this order will be trespassers, and the laws applicable will be enforced against them. - This applies particularly to hackmen, hotel runners, etc.
“ The attention of parents whose children go about said places, or upon any-of the property of this company, to play or to ride on the trains, or for any other purpose, is especially called to this order, and they are hereby required to keep-their children away from the railroad, as in all such cases the children are not only greatly exposed to dangers, but are in law trespassers.”
It was proved that plaintiff had knowledge of the notice. He was permitted to prove that the regulation was usually disregarded by the employees in charge-of defendant’s trains.—[Rep.