119 Ark. 75 | Ark. | 1915
This is an action instituted by the plaintiff, C. H. Steptoe, against the defendant railway company to recover for personal injuries alleged to have been sustained by plaintiff while alighting from the caboose of a. freight train on which he was a passenger. The jury returned a verdict in favor of the defendant and the plaintiff has appealed.
Plaintiff was a traveling salesman, and took passage on defendant’s local freight train at Calico Rock, a station on the White River branch, and paid' his fare to Guión, another station twenty or thirty miles distant. The train 'contained twenty-one cars besides the caboose, and arrived at Guión about 8 o’clock in the evening. It was -on January 28,1914, and was therefore after dark when the train reached Guión, the night being a dark one. The train came to a stop with the caboose 668 feet distant from the station, .and the caboose, when it came to a stop, was standing on a trestle twenty-two feet high. Plaintiff and another traveling man were the only passengers and they attempted to alight from the caboose at that place, and they contend that they did so upon the invitation of the conductor and his assurance that it was a proper place for them to debark. When plaintiff attempted to alight from the steps of the caboose, he fell to the ground below and received very severe injuries. Plaintiff testified that when the train whistled he asked the conductor, “Are you going into Guión?” And that the conductor replied, “Yes;” that after the train came to a stop he and his companion picked up., their suit cases and passed the conductor, who was sitting at his desk in the caboose writing, and that they asked the conductor, “Is this Guión?” and that the conductor replied, “Yes, this is the place. ’ ’ He testified that the conductor was sitting there and saw him and his companion pass out on the platform for the purpose of getting off the train. Plaintiff’s companion testified concerning the incident and narrated the same facts upon the witness stand that plaintiff did. There is a sharp conflict in the testimony ■and the jury might have found either way upon the testimony. The conductor testified that the only conversation he had with plaintiff or his companion was that when the train whistled for Guión, the caboose then being as much as a mile distant from the station, one of the passengers, either plaintiff or his companion, asked, “What is this?” And that he (conductor) replied, “It will he Guión when we get there.” The conductor testified that he immediately went up in the cupola of the caboose and out on the roof and proceeded along the top of the cars for the purpose of reaching the front end so as to be there when the train stopped, and that he was on top of one of the cars, within three or four cars of the engine when the train came to a stop. He denied positively that he was in the caboose at the time the train stopped or had 'any conversation with plaintiff or his companion except that just related. He is corroborated by several of the trainmen who testified that they saw the conductor on top of the boxcars going toward the engine before the train stopped. The defendant also' introduced a written statement purporting to have been made by the plaintiff at his home a few days after the injury occurred, and the narrative of facts in that written statement is in direct conflict with what the plaintiff testified on the witness stand. However, the plaintiff denied that he made that statement, or rather he stated that he had no recollection of signing it, ¡and that if he did so he was not conscious of it. He said that he was sick at home .and suffering from his injuries and was not in a condition mentally to give any statement or to recollect the details of the one that was given.
The plaintiff, in addition to its exceptions to that instruction, asked the following modification: “Unless you further find from the testimony that the acts, words and 'conduct of conductor W. M. Case were such as would reasonably cause the plaintiff to believe they had reached a reasonably safe place to alight, and plaintiff did so believe, and undertook to alight, and in doing so, while in the exercise of ordinary care, was injured.” We think this instruction was, as before stated, in direct conflict with the correct instructions given at the instance of plaintiff, and it was error to give the instruction without the modification requested by plaintiff or a similar one. The court had ¡already given appropriate instructions embodying the statements contained in the modification asked by the plaintiff, but the omission of this modification left the instructions in conflict with others and might have misled the jury. There is no testimony which would justify a finding that the plaintiff was entirely familiar with the surroundings at Guión. There is some testimony that he traveled regularly along that route, and that he had stopped at Guión six or seven times during the time he was traveling in that territory. It was incorrect to ■state the law to the jury to ¡be that the plaintiff could not recover if, by the use of ordinary care, he could have known that he was not at the station, or that the place where the caboose was standing, was not a suitable place to debark, and not the place intended ¡by the defendant for discharging passengers. This entirely ignored the plaintiff’s theory of the case, that he was induced 'by the misleading statement and conduct of the conductor to believe that it was .the proper and safe place to debark. If, as plaintiff contended, he was induced by the conductor to believe that the caboose had stopped at the proper place for 'him and his companion to debark, then he is not precluded from recovery merely because he could, by the exercise of ordinary care, have known that he was not at the station or not at the place where it was intended for him to debiark. The language of the instruction contradicts the whole theory upon which the case should have been tried, 'and it was clearly erroneous. There was a sharp conflict in the testimony, 'and therefore we can not say that the jury were not misled by this instruction.
Now, this instruction states that the jury should not “discard or depreciate the testimony of a witness merely because he is in the employ of the railway company. ’ ’ It tells the jury, in other words, that- the mere fact that a witness is employed by the defendant does not justify the jury in discarding the testimony of such witness or lessening its weight. Now, we think that is a correct statement of the law, for the mere fact that the witness is in the employ of the defendant, there being no other circumstances establishing an interest, then it would be entirely arbitrary to disregard his testimony. We have said in cases that where employees of a railway company give a satisfactory account of a transaction under investigation, their testimony can not be disregarded merely because they are employees of the company. St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514. There is.no prejudicial error, therefore, in making that .statement of law to the jury. If, however, there are other circumstances, such as the fact that the conduct of the witnesses themselves are under investigation, and they are themselves to that extent interested, the jury would have the right to reject their testimony, .and it would (be improper to tell the jury anything to the contrary, or to give ah instruction which might lead a jury to believe to the contrary. In other words, if this instruction had related to the conductor, who was subject to censure, for his misconduct, if the testimony of the plaintiff be true, then the instructions might have had prejudicial effect. But there are several other witnesses in this case who were employees of the railway company, and doubtless the instruction was intended to cover their testimony, and as to them it was not an incorrect statement of the law concerning the weight to be given the testimony of witnesses. If learned counsel for plaintiff feared that the jury might treat the instruction as applicable to the conductor, they should have asked a modification or should have asked another instruction telling the jury that in considering the weight of the testimony of such a witness, they should take into consideration .his relation to the occurrence which resulted in plaintiff’s injury. We are therefore of the opinion that instruction No. 13, though one which should not have been given because it is bad practice to single out a class of witnesses, Was not prejudicial, and does not call for a reversal of the case.
For the error,"however, in giving ‘instruction No. 6, without the modification requested by plaintiff, the judgment is reversed and the cause remanded for ia new trial.