St. Louis, Iron Mountain & Southern Railway Co. v. Battle, 69 Ark. 369

St. Louis, Iron Mountain & Southern Railway Co. v. Battle

69 Ark. 369 | Ark. | 1901

Wood, J.,

(after stating the facts). 1. Considering first the question of contributory negligence, the proof shows that Battle was not very familiar with the platform and its incline, having passed over it only • once before. On the occasion in question, when the train whistled which they supposed to be the one desired, Battle put on his overcoat, gathered up his valise in his left hand, with umbrella in his right, and walked out of the car (first feeling with his umbrella for the gang plank) onto the platform, still using his umbrella as a guide to feel bis way until he fell. There was not sufficient light to enable him to see the platform or the incline at the time he made his exit. But the proof tended to show that for ten minutes after the arrival of the Searcy train the platform was sufficiently lighted to have enabled Battle to pass out safely, and it is insisted that he was guilty of contributory negligence in not passing out during that time. The proof tended to show a custom for passengers who did not intend to buy tickets, and had no baggage to check, to remain on the Searcy coach until the arrival of the Iron Mountain train which they desired to take. Battle and the other passengers were invited by the driver and conductor of the mule car to remain on the Searcy coach, as there was no night porter'at'the depot who kept up the fires.' True, the driver of the mule car testified that he did not think he notified' the passengers to remain on his coach, 'but he. does not say that he did not do so. There is positive proof by other witnesses that he did invite them to remain,' and the driver himself testified on 'this point as follows: '“I remember Mr. Battle speaking to me, if I wanted them to get'out, so I could go to sleep: T told them that I did not aim to go to sleep. That was just before I went into the depot.” The Searcy road-had no station house of its own. The only waiting place for its passengers was therefore its car. . It was shown that it usually arrived at Kensett before the Iron Mountain train with which it made connection, perhaps as much as twenty minutes. We do not think the condrictor, who had entire charge of the Searcy coach, and was the only representative of his company on the ground, and stood for it for all purposes, so far as the duty to passengers was concerned at Kensett, exceeded his apparent or real authority in inviting the passengers to remain on his coach until the arrival of the Iron Mountain train, which they were expecting to take.

Even in the absence of any. custom or positive invitation to remain, the passengers were invited by the very surroundings to remain on the Searcy coach, if they so desired, until the arrival of the Iron Mountain train which they expected to take. It was cold and dark on the outside, the fires were not kept up in the station house of the Iron Mountain. The Searcy coach had a fire, and was comfortable. It expected to await the arrival of the Iron Mountain train. Only about fifteen or twenty minutes intervened. There was no rule of the company forbidding its passengers to remain while awaiting the arrival of the Iron Mountain train. In the absence of such-rule, and with no other waiting room provided for its passengers by the Searcy road, we know of no rule of law that would force them from the only comfortable waiting place provided. The instructions of the court on all these points was therefore more favorable to the Searcy road than it had the right to expect. The verdict acquitting Battle of contributory negligence was amply sustained by the proof.

Was the Searcy road liable? It was its plain duty to exercise ordinary care to. have-its platform and the. incline or-approach thereto sufficiently lighted to enable its passengers and those intending to become its passengers to enter upon and depart from its trains with reasonable safety. Fordyce v. Merrill, 49 Ark. 277; Thompson, Carr. Passengers, 108.

The light slioiild be maintained a reasonable time before'and after the arrival and ’departure of trains. A finding of negligence for failing to keep the platform lighted for fifteen or twenty minutes, under the circumstances of this case, cannot be considered unreasonable. The Searcy & West Point Railroad failed to discharge the duty which it owed to the appellee in this regard, and is therefore liable. We find no' error in the charge of the court of which it can complain, and the judgment as to it is affirmed.

2. The court, by a majority of its judges, has concluded that, under the facts as stated, the Iron Mountain is not liable, and that as to it the judgment must be reversed, and the cause remanded for new trial. Prom the decision and judgment holding the Iron Mountain not liable, and reversing and remanding the cause as to it, Justice Riddick and I dissent. We are of the opinion that the elevated platform and its incline is a necessary approach to the platform and station house of tire Iron Mountain road at Kensett. This by reason of its necessary and usual, if not unavoidable, use by its passengers who intend to go to Searcy over the Searcy road in continuous journejg and likewise by passengers of the Searcy road who intend to become passengers of the Iron Mountain road. By reason of its contiguity to the platform and station house and the necessary use as indicated, it was an approach to the platform of the Iron Mountain road, as well as the Searcy road, and devolved upon the Iron Mountain the common duty with the Searcy road of exercising care to keep it reasonably safe for passengers, which duty could only have been discharged by lighting the platform for a reasonable time before and after the arrival and departure of its trains. It was immaterial that the platform was erected by another and without its affirmative permission. It was its right and duty to object to a dangerous agency being placed in such proximity to its platform and station'house as to become a necessary approach to its trains by certain of its patrons, and its failure to object ancVto take steps to remove was tantamount to assent or concurrence, so far' as the law is concerned, in fixing duties and liabilities.

The facts of this ease in our opinion make the Iron Mountain a joint tort feasor with the Searcy road; and the principle of law applicable is correctly and concisely stated in 16 Am. & Eng. Enc. Law, 471, as follows: “Where a breach of duty is committed by more than one person, each contributing to the injury as a joint tort-feasor, the plaintiff, has his election to make either or all of them defendants. And it is not always essential, in order to make them liable as joint tort-feasors, that they should have acted in concert; acting independently and causing together a single injury, they are liable jointly and severally.”

The judgment should be affirmed against both appellants.