115 Ark. 262 | Ark. | 1914
(after stating the facts).
The case of St. Louis, I. M. & S. Ry. Co. v. Oliver, 92 Ark. 432, discusses the right of railroads to provide vestibuled cars and the care which must be exercised when they have been provided. The facts in that case were that Oliver, the passenger, secured passage on one of defendant’s trains from Malvern to Benton, and, while passing out of the chair car, in which he had been riding, to the smoker ahead, he fell in the open trap door in the vestibule between the cars, his evidence being that, as he passed out of the chair car on the platform between the cars, he met a gentleman starting to go into the chair car, and he stepped slightly to the side to permit this party to pass, and fell down the steps in the vestibule. The trap door was not down over the steps, and it was dark in the passageway between the cars and in the vestibule. The rules and custom of the railway company required that, when such a vestibuled passenger train left a station, the servants of the company should close the vestibuled doors and close down the trap doors over the steps, and, while the' servants of the company testified that they had performed that duty, the court held that there was sufficient evidence to support a finding that they had not done so. In that case it was said:
“A common carrier of passengers is not under any legal obligation to provide upon its line of railroad vestibuled trains, although such trains are apparently safer than the others, 'and have come to be in general use. But when the carrier has provided vestibuled trains, it is his duty to maintain them in a safe condition. It then becomes the positive duty of the carrier in the operation of such trains to use the highest degree of care consistent with the practical operation and management thereof to see that every appliance connected therewith is kept in repair and in safe condition. The passenger has the right to assume that the vestibules provided are carefully managed, and that they are convenient and safe. The principles generally recognized as fundamental in the law of carriers of passengers are applicable to these new appliances.” (Citing cases.)
“The degree of care that is required of the carrier in furnishing sound and safe appliances in its vestibuled trains and seeing to it that those appliances are kept at all' 'lidies safe and sound while its-'trains are' carrying passengers is not one ;of "ordinary care, but the carriel ‘is bound to the utmost diligence which human 'skill and foresight can effect; and if injury occurs by reason of the -slightest' omission in r'egard to the highest perfection of all the'appliances o'f transportation, or the mode of management at the time the -damage occurs, the -carrier is responsible.’ ” George v. St. Louis, I. M. & S. Ry. Co., 34 Ark. 613.
“One of the -chief objects of a vestibuled train is to furnish to .the passenger -a safe and -convenient way of passage from one carlo another; -and in order for Such passage- way to '-be safe, ordinary 'prudence demands that the trap doors-should Tie over the -steps..' It was not only the duty of th-e servants -of the defendant in this case to close these trap doors, but it was their further duty to -exercise the highest care to see that they were kept in this -condition. In the -cas-e of- Wagoner v. Wabash R. Co., 94 S. W. 295, the majority of the court say: ‘It is the opinion of the court that the railroad company is not only answerable for the negligent -acts of its servants in opening the vestibule doors and- permitting the same to .remain after having been opened by them, hut it is responsible as well for its failure to -exercise a high degree of care, to the -end that the same are- closed and the vestibule reasonably safe for use, even though they are opened by others than the -defendant’s servants. In this case it became a question for the jury to determine whether, under the circumstances, the defendant exercised that high degree of care and vigilance in -closing and keeping closed the trap door over the steps. And there was some evidence to warrant the finding that such high degree of vigilance and care was not exercised by the servants of the defendant in charge of the train.”
Another -statement of the duty of the carrier is found in the case of Chicago, R. I. & P. Ry. Co. v. Simpson, 87 Ark. 335, where it was said:
“As is s-aid in Wagoner v. Wabash R. Co., 94 S. W. 293, ‘the purpose of the vestibuled -ears is to add to the comfort, convenience' -and" safety of pa&sen'gers, more’: particularly while passing from-one car'to another-.’-. While railway companies are-not bound to provide vesti1' baled coaches on their passenger trains, y'et, where they' have done so, passengers will have the right to assume-■ that they are -convenient and -safe for the purpose intended, and that they will be prudently managed. Any negligence upon the part of railway companies in these particulars resulting in injury to their passengers will-render them liable in damages. 2 Hutchinson, Carriers, § 927.” •
In both the Oliver and the Simpson cases, supra-, the passengers were injured while the train was in motion, and these eases, as well as the cases therein -cited*-should-be read in the light of the facts to which the principles-there announced were applied. It is not always negligence for the carrier to fail to close the trap over the steps, or to keep open or to keep closed the train doors. The Oliver case, supra, contains a quotation from the case of Pennsylvania Company v. Roy, 102 U. S. 451, where the duty of the carrier to the passenger was defined, in which Mr. Justice Harlan, speaking for the court, said:
“ Hie is responsible for injuries received by passengers in the course of their transportation 'which might have been avoided or -guarded against by the exercise upon h-i-s part of extraordinary vigilance. aided by the highest skill. And this caution and vigilance must necessarily be extended to all the agencies or means employed 'by the carrier in the transportation of the passenger. Among the duties resting upon him is the important one of providing cars or vehicles -adequate, that is, sufficiently •secure -a-s to strength and other requisites for the safe convenience -of passengers. That duty the law enforces with great strictness. For the slightest negligence or fault in this regard, from which injury results to the passenger, the carrier is liable in damages.’ ”
“The uncontroverted proof in this case shows that appellant was guiltless of any negligence in the management of its vestibule appliances that resulted in injury to young Simpson. The vestibule in question, being at the rear end of the rear coach, could not be used for crossing from one car to another. There was therefore no duty upon the part of the appellant to have the rear end of the last coach in the train vestibuled in order that passengers might pass from car to car in safety. Appellant had not led young Simpson to believe that a vestibuled platform could be used to ride on for observation, conversation or other purposes. See Crandall v. Minneapolis, St. Paul & S. S. & M. Ry. Co., 105 N. W. Rep. 185. Appellant was under no duty to provide a vestibule for such purposes, and was therefore not liable for its failure to do so.” Having found that the railway company was guilty of no negligence, the court did not consider or decide the question of the contributory negligence of the boy, which -was raised in that case. : •
The proof upon the part of appellant was that the trap was left up in order that the porter might flag the-train out of the station until it backed down to the main line which led to Fort Smith and that, after having done this, he could enter the train without having it wait until he went to the front end of it and was admitted, and that thereafter both the trap and the door would be kept closed.
