93 Ark. 240 | Ark. | 1909
(after stating the facts.) There was evidence tending to show that appellee’s injury was caused by a sudden jerk, or the swaying motion of appellant’s train while it was running and rounding a curve, causing him to strike the stool with his heel and to fall. This warranted submitting the question to the jury as .to whether appellee’s injury was caused by the running of the train. The instruction was applicable ±0 the facts under section 6773, Kirby’s Digest, and repeated decisions of this court. St. Louis, I. M. & S. Ry. Co. v. Puckett, 88 Ark. 204, and cases there cited.
It is nol negligence as matter of law for a passenger, in the absence of any rule of the carrier prohibiting it, to pass from ;one car to another while the train is running. McAfee v. Huidekoper, 34 L. R. A. 720; 3 Thompson on Neg., § 2969. Whether or not a passenger is guilty of negligence in so doing depends upon the facts and circumstances of each particular case. A passenger who undertakes to pass from one car to another, however, while the train is running, assumes the risk of injury caused by the ordinary movements of the train of good construction and in good repair over a track that is in good condition. In other words, if the company is not negligent in the running of its train, the passenger who undertakes for his own convenience or pleasure to pass from one car to another assumes the ordinary risks incident to so doing. He does not assume any risks of the carrier’s negligence; and, if himself free-from contributory negligence, he may recover where his injury is caused by the negligence of the carrier. 3 Thompson, Neg., § 2969; Stewart v. Boston & Providence Rd. Co., 146 Mass. 605.
Prayer number 2 was correctly modified, so as to submit to the jury the question whether appellee was guilty of contributory negligence under the circumstances detailed in evidence, instead of declaring as matter of law that his conduct was negligence. Missouri & N. A. R. Co. v. Bratton, 85 Ark 326; Scott v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 137; Tiffin v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 55.
•There was evidence to warrant the finding that appellant was negligent in leaving the stool or box step in the passage way on the platform between the cars, and that this negligence was the proximate cause of appellee’s injury. The evidence was hardly sufficient to show that the appellant was negligent in causing a sudden jerk; but that was not essential to appellee’s right to recover, since the evidence was sufficient to sustain the other allegations of negligence, and that the injury was the direct result of such negligence. The motion of the train, whether negligent or not, concurred and co-operated with the negligence in leaving the step in the aisle, which was the efficient and proximate cause of the injury and damage to appellee. At least, the jury have so found on correct instructions and upon sufficient evidence.
The judgment is affirmed.