110 Ark. 437 | Ark. | 1913
(after stating the facts). We think the court did not err in giving the instructions requested by appellee and in refusing those asked by appellant, under the facts in this case. In effect, the instructions requested by appellant told the jury that if the platform on which appellee was hurt was intended for use in handling and discharging freight, and was not intended by the railroad company for the use of passengers in going to and from its trains, and that there was no necessity for appellee to occupy any portion of the platform in reaching the depot or train, that appellant was under no obligation to keep it in a reasonably safe condition, and would not be liable for its failure to do so. And further, that if a waiting room with sufficient accommodations, exclusive of the paltform in question, had been furnished, and that appellee went upon the defective platform in the night time, when there was no necessity for him so to do, he could not recover. The duty of railroad companies in making their depots and platforms safe is announced in the case of Texas & St. Louis Railway Company v. Orr, 46 Ark. 182, where the following language was used:
“As a general rule, railroad companies are bound to keep in a safe condition all portions of their platforms and approaches thereto to which the public do or would naturally resort, and all portions of their station grounds, reasonbly near to the platform where passengers or those who have purchased tickets with a view of taking passage on the cars, or to debark from them, would naturally or ordinarly be likely to go; and especially by those routes and methods which the company have established by its own customs and practice, as here. This is well established.” A number of cases are there cited in support of the court’s declaration of the law. The above statement of the law has been expressly approved in the following cases, several of which quote with approval the exact language of that opinion: St. Louis & S. F. Rd. Co. v. Caldwell, 93 Ark. 286; St. Louis, I. M. & S. Ry. Co. v. Dooley, 77 Ark. 561; St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 258; Arkansas Midland Ry. Co. v. Robinson, 96 Ark. 32.
Appellee’s instructions in the present case substantially conformed to the law, as announced in the above cited cases, and we think were properly given under the facts in this case. These instructions do not give the passenger authority to ramble at will over the premises of the railroad company adjacent to the depot, and they impose upon the carrier the obligation and duty only of making those premises safe which passengers would likely and ordinarily use when waiting to take passage upon trains. The third instruction given at appellee’s request properly told the jury that there can be no recovery if the passenger failed to exercise ordinary care for his own safety if such failure contributed in any degree to his injury. Here, the platform appears to have been but a single structure built in part of gravel or silica and of wood, with a plank flooring, and all upon the same level, so that passengers used all portions of it alike. And while a part of it had been designed for loading and unloading freight into wagons, it was seldom used as such, and there was nothing to prevent passengers from going upon it, as they did upon other parts of the platform. Indeed, the jury might have found that the railing on the south end was an invitation to passengers for its use, for, had the railing been put upon the west side, it would have kept them off entirely.
Appellee’s first instruction told the jury that it was the duty of the railroad company to exercise ordinary care to keep in a reasonably safe condition all platforms and approaches upon which passengers would naturally or ordinarily be likely to go, and we think the jury was warranted in finding that this was such a platform, and that appellant’s duty was not discharged by having a safe waiting room and a safe approach therefrom to the train. The railroad company must be charged with the knowledge that passengers might not remain in the waiting rooms until the arrival of trains. Nor does ordinary care for one’s safety impose such duty upon passengers, as a matter of law, so that the failure to remain in a waiting room until the arrival of the train would necessarily constitute negligence. It is true it was said in the case of Little Rock & Fort Smith Railroad Company v. Cavenesse, 48 Ark. 106, that, “the duty of the carrier to keep its platform and approaches thereto in good condition, and to provide safe and convenient means of entrance and departure creates the reciprocal duty on the part of the passengers to occupy the premises provided for their use in waiting for trains and in going to and from the carrier’s depot, offices, platform and trains to use the ways and means provided for that purpose.” But the facts of that case were entirely dissimilar from those of the present case, as the injured party in that case had gone to a place where the railroad company could not have anticipated a passenger would go, and where there was no duty to make the place safe. ' The instructions given do not offend against the law as announced in the cases cited, while the instructions requested by appellant undertake to apply to the facts of this case the law applicable to the facts in the Gavenesse ease, and they apparently state the law to be that the railway company was under no duty to keep the platform safe if it was designed as a freight platform, and ignores the fact that it was ordinarily and commonly used by passengers as a part of the passenger platform. It was a question of fact for submission to the jury whether appellee and other passengers had the right to be upon this defective platform, and that the railroad company should be charged with knowledge that it would be so used, and the verdict of the jury settled that question of of fact. ■
The judgment of the court below is therefore affirmed.