87 Ark. 581 | Ark. | 1908
(after stating the facts.) Counsel for appellant assign as error that there is no evidence of negligence on the part of the company; In response to this argument,'it is only necessary to state that where a train is started while a passenger is attempting to alight from it, and he is thereby injured, a prima facie case of negligence is made against the company, in contemplation of section 6773 of Kirby’s Digest, providing that railroads shall be responsible for all damages to persons or property caused by the running of trains in this State. Kansas City Southern Ry. Co. v. Davis, 83 Ark. 217, and cases cited.
Counsel for appellant chiefly rely for a reversal upon the action' of the court in telling the jury in instruction No-. 1 that where a train has stopped at a station, and before the passengers have had time to alight, it is the carrier’s duty to give passengers, in some way, notice of all movements of the train. They cite the case of Railway Company v. Tankersley, 54 Ark. 25, in support of their contention. This, with the argument made in their brief, shows that they have confused the duty of the railway company after the station is called and before its passengers have had time to alight with that it owes passengers after its train has stopped long enough to give them an opportunity to alight. There is no conflict in the two rules. Each is applicable to its own state of facts. Here the appellee says that she started at once to leave the train when it was stopped and fell before she had had time to debark from it. The instruction was applicable to the state of facts under consideration, and its application to such state of facts was recognized and approved by this court in the case of Kansas City Southern Ry. Co. v. Davis, supra.
Counsel for appellants also objected to the giving of instruction No. 3, and ask a reversal because in it the court told the jury it was the duty of the railroad company to provide lights at its stations for the safety of passengers in arriving or departing at night. There was no error in giving this instruction. St. Louis, Iron Mountain & Southern Railway Company v. Battle, 69 Ark. 369; Fordyce v. Merrill, 49 Ark. 277.
Counsel for appellant argue that the fourth instruction required 'the company to stop the train until the passengers alight therefrom. We do not think the instrument is susceptible of any such construction. That it was the duty of the railroad company to stop its trains at its platforms, see 2 Hutchinson on Carriers, § 1117; Memphis & C. Rd. Co. v. Whitfield, 44 Miss. 466.
Appellant also asks for a reversal because the court did not permit its counsel to present to the'jury in his argument that the real cause of action was the fact that 'the negro coach passed the depot while the white coach was stopped at the depot platform. The court properly refused to allow this line of argument. There was no testimony from which such fact might be inferred, and beside its evident ■ purpose was to stir up race prejudice and to hold up appellee to ridicule before the jury.
Again, appellant asks for a reversal because its counsel was not permitted to ask appellee as to. the height of her shoe heels at the time she received the injury. The question was not pertinent to the issue, and was evidently asked to provoke merriment at the expense of appellee.
Finding no error in the record, the judgment is affirmed.