85 Ark. 117 | Ark. | 1908
(after; stating the facts.) .Appellant claims that the first instruction given by the court was erroneous. The instructions are as follows:
“You are instructed that the defendant railway company, if it undertook to render plaintiff assistance, was bound to the highest degree of care in securing the safety of the plaintiff in boarding its train, which is that degree of care which a very prudent person would have exercised under the circumstances; and if you find from the evidence that the defendant railway company, through its servants or employees, did undertake to assist plaintiff to board the train, and failed to discharge this duty, and plaintiff was injured thereby, your verdict should be for the plaintiff.”
Counsel for appellee to sustain the instruction quotes the following: “The carrier is bound to exercise care in securing the safety of passengers while boarding or alighting from its cars or other conveyances, and the degree of care required in the discharge of this duty is the highest care, or that degree of care which a very prudent person would have used under the circumstances.” 6 Cyc. 611, and notes. A reference to the cases cited in the notes will show that the doctrine announced applies only where there is some unusual danger or difficulty arising from the place or means afforded for entering or alighting from a train. This is but an application 'of the principles laid down by this court in the case of Railway Company v. Rexroad, 59 Ark. 185. The rule is that the carrier is held to the highest degree of care in the management of its trains, for the reason that in that respect the passenger can do nothing to insure his own personal safety.
In the present case there were no unusual difficulties. Appellee was attended by two friends, who could reasonably be expected to assist her with her child, if any assistance was needed. There was a smooth cinder platform on a level with the rails and a stool upon which to mount to the first step. The train stopped at the usual place. Under the circumstances there was no duty devolving upon appellant to assist appellee in entering the train. 2 Hutchinson on Carriers, § § 1112 and 1127; 6 Cyc. p. 611 and notes; Yarnell v. Kansas City, F. S. & M. R. Co., 18 L. R. A. 599.
But it is admitted that the brakeman attempted to assist her. Having undertaken a duty that it was not required to perform, the carrier was only bound to use ordinary care in discharging that duty. It is like the kind of care that is required in respect to station arrangements. In the case of St. Louis, I. M. & S. Ry. Co. v. Fairbairn, 48 Ark. 493, Cockrill, C. J., said: “But the company is bound to use ordinary care to keep its platforms in a safe condition for the benefit of those who have the legal right to go upon them.”
For the error in giving the first instruction the case is reversed and remanded-.