{ "id": 1536313, "name": "Prescott & Northwestern Railroad Company v. Thomas", "name_abbreviation": "Prescott & Northwestern Railroad v. Thomas", "decision_date": "1914-05-18", "docket_number": "", "first_page": "56", "last_page": "61", "citations": [ { "type": "official", "cite": "114 Ark. 56" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "73 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504028 ], "opinion_index": -1, "case_paths": [ "/ark/73/0548-01" ] }, { "cite": "80 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1491147 ], "opinion_index": -1, "case_paths": [ "/ark/80/0019-01" ] }, { "cite": "57 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "49 Ark. 535", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1310072 ], "opinion_index": -1, "case_paths": [ "/ark/49/0535-01" ] }, { "cite": "33 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726426 ], "opinion_index": -1, "case_paths": [ "/ark/33/0816-01" ] }, { "cite": "63 Ark. 636", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724919 ], "opinion_index": -1, "case_paths": [ "/ark/63/0636-01" ] }, { "cite": "19 Law. Ed. 439", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": -1 }, { "cite": "75 U. S. 397", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3444631 ], "opinion_index": -1, "case_paths": [ "/us/75/0397-01" ] }, { "cite": "55 Ark. 258", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "88 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "86 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521479 ], "opinion_index": -1, "case_paths": [ "/ark/86/0489-01" ] }, { "cite": "75 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502497 ], "opinion_index": -1, "case_paths": [ "/ark/75/0251-01" ] }, { "cite": "64 N. J. L. 702", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 313910 ], "opinion_index": -1, "case_paths": [ "/njl/64/0702-01" ] }, { "cite": "22 Atl. 708", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "179 Mass. 52", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 23729 ], "opinion_index": -1, "case_paths": [ "/mass/179/0052-01" ] }, { "cite": "35 L. R. A. (N. S.) 592", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": -1 }, { "cite": "79 N. E. 1094", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "15 L. R. A. 523", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "69 Atl. 338", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "27 Ind. App. 500", "category": "reporters:state", "reporter": "Ind. App.", "opinion_index": -1 }, { "cite": "113 Pa. 300", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 457618 ], "opinion_index": -1, "case_paths": [ "/pa/113/0300-01" ] }, { "cite": "28 Atl. 140", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "159 Pa. 364", "category": "reporters:state", "reporter": "Pa.", "opinion_index": -1 }, { "cite": "46 Atl. 710", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "50 L. R. A. 470", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "64 N. J. L. 707", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 313844 ], "opinion_index": -1, "case_paths": [ "/njl/64/0707-01" ] }, { "cite": "89 Ark. 279", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515270 ], "opinion_index": -1, "case_paths": [ "/ark/89/0279-01" ] }, { "cite": "88 Ark. 454", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517095 ], "weight": 2, "pin_cites": [ { "page": "594" } ], "opinion_index": -1, "case_paths": [ "/ark/88/0454-01" ] }, { "cite": "48 N. Y. Supp. 630", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3436872 ], "opinion_index": -1, "case_paths": [ "/nys/48/0630-01" ] }, { "cite": "111 N. Y. 488", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2218141 ], "opinion_index": -1, "case_paths": [ "/ny/111/0488-01" ] }, { "cite": "65 Ark. 255", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609322 ], "opinion_index": -1, "case_paths": [ "/ark/65/0255-01" ] }, { "cite": "16 L. R. A. 436", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "59 Am. Rep. 506", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": -1 }, { "cite": "105 N. Y. 294", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2208694 ], "opinion_index": -1, "case_paths": [ "/ny/105/0294-01" ] }, { "cite": "93 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": -1 }, { "cite": "60 Ark. 550", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903692 ], "opinion_index": 0, "case_paths": [ "/ark/60/0550-01" ] }, { "cite": "96 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1541981 ], "opinion_index": 0, "case_paths": [ "/ark/96/0311-01" ] } ], "analysis": { "cardinality": 584, "char_count": 10238, "ocr_confidence": 0.505, "pagerank": { "raw": 2.895198991598562e-07, "percentile": 0.8446386256496035 }, "sha256": "0d94181a73a04b28a7afd5a17a85f7904b6229dde9902c13c8d75c6a774cffcc", "simhash": "1:3cad3018414c54f8", "word_count": 1796 }, "last_updated": "2023-07-14T15:18:07.178961+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Prescott & Northwestern Railroad Company v. Thomas." ], "opinions": [ { "text": "McCulloch, C. J.\nThe plaintiff, Mrs. Thomas, claims to have received personal injuries while she was. getting off one of defendant\u2019s trains, and sues to recover compensation for the injuries. She took passage on the train at Tokio and went to McCaskill, which was the station nearest to her home, and after the train came to a stop, while she was getting off, her foot slipped, and she fell against the step, injuring her back. The jury-awarded damages in the sum of $500.\nShe testified that after the train came to a stop she walked out on the platform and down the steps and that as she went to stepson the box which had been set on the ground by the porter or brakeman in a slanting position her foot slipped from the step of the car and that the box, proving to be an insecure or unstable footing, she fell against the steps and injured- her -back.\nAnother witness, who was present and saw her get off, said that there was a bunch of cantaloupe seed on one of the steps and that Mrs. Thomas slipped and fell.\nThe defendant made no serious contention that the plaintiff did not slip and, perhaps, receive some slight injury; but it denied the charge of negligence, and also denied that the plaintiff received any -substantial injuries. Most of the proof was directed to the last mentioned question concerning the extent of the injuries. There is an assignment of error in the admission of testimony directed to that issue. It is contended that the court erred in permitting a witness to testify concerning complaints made by the plaintiff two weeks -after the alleged injury.\nThe law is settled, we think, by the authorities cited on -the respective 'briefs >of the parties that involuntary exclamations indicating pain -are admissible, whether uttered at the time the injury occurs' or afterward. They are in the nature of verbal acts which go to the jury for what they are worth. On the other hand, it is equally well settled that statements of the injured party merely by way of narrative are purely hearsay, and come within the rule against the admissibility of self-serving declarations.\nWhen the testimony of the witness is examined as a whole, it is clear, we think, that she testified to the plaintiff\u2019s \u201ccomplainings\u201d merely as involuntary exclamations of pain and, as such, they were competent to be considered by the jury in determining the extent of plaintiff\u2019s suffering.\nAnother assignment relates to an instruction given by the court, as follows:\n\u201cYou are instructed that in the operation and management of its trains the defendant owes its passengers the highest degree of care which a prudent and cautious man would exercise reasonably consistent with its mode of conveyance and the practical operation of its trains.\u201d\nIt is contended that ordinary care is the requirement with respect to a passenger getting on or off a train.\nBut we have held otherwise in the case of St. Louis, I. M. & S. Ry. Co. v. Woods, 96 Ark. 311, where it was said:\n\u201cThe higher degree of care is exacted only during the time in which the passenger has giv\u00e9n himself wholly in charge of the carrier, while on the train or getting on or off, for then only is the passenger subjected to the peculiar hazards of that mode of travel against which the carrier must exercise the highest degree of skill and care.\u201d\nThat, indeed, amounts only to ordinary care, which increases in proportion to the danger. Railway Co. v. Sweet, 60 Ark. 550.\nError is assigned in refusing to give Instruction No. 8, which reads as follows:\n\u201cUnless the greater weight of the evidence shows that the defendant\u2019s trainmen knew of the presence of the cantaloupe seed on the steps of defendant\u2019s car, and negligently failed do remove them within a reasonable time after such knowledge, or that the seed had been on the steps of said car for a sufficient length of time as that such trainmen, acting \u00e1s reasonably prudent persons, ought to have discovered them within the time they had been there, you should find for the defendant on the aliegation that the defendant negligently allowed cantaloupe seed to be on its steps.\u201d\nThait instruction lays down the correct rule for* measuring the degree of care; but we are of the opinion that there was no prejudice in refusing to give theinstruction, for the reason that there was no attempt to show that cantaloupe seed had been on the steps for so short a time that the trainmen had no opportunity to discover its presence there. The box step had been placed there by some of the trainmen immediately before the plaintiff debarked and the opportunity of the trainmen to discover the presence of the seed was entirely within their knowledge. If it had been shown that the seed were on the steps so short a time that warranted the jury in finding that there was no negligence in failing to discover the condition, then this instruction would have been applicable; but in the present state of the case we do not see how it could have affected the verdict. The refusal to give it was, therefore, not prejudicial.\nAnother assignment relates to refusal of the court to give an instruction (No. 11) as to the burden of proof being on the plaintiff.\nBut the refusal to give the instruction was not prejudicial, because the court gave another instruction at the instance of defendant, telling the jury that \u201cunless the plaintiff has shown by a greater weight of the evidence that she was injured by the negligence of the defendant, your verdict should be for the defendant.\u201d\nIn view of that instruction, which is as favorable as the defendant could have asked, it is unnecessary for us to determine where the burden of proof rests in case of injury to a passenger under circumstances indicated in this record.\nJudgment affirmed.", "type": "majority", "author": "McCulloch, C. J." } ], "attorneys": [ "McRae & Tompkins, for appellant.", "J. O. A. Bush, for appellee." ], "corrections": "", "head_matter": "Prescott & Northwestern Railroad Company v. Thomas.\nOpinion delivered May 18, 1914.\n1. Evidence \u2014 involuntary exclamations.- \u2014 -In an action for damages for personal injuries caused by negligence, evidence of involuntary exclamations made by plaintiff, indicating pain, is admissible, whether uttered at the time the injury occurred or afterward.\n2. Evidence \u2014 self-serving declarations. \u2014 Statements by an injured _ party made merely by way of narrative are hearsay and inadmissible in an action for damages for personal injuries.\n3. Railroads \u2014 injury to passenger \u2014 degree of care. \u2014 In an action for damages due to personal injuries caused by negligence of a> railroad company, while plaintiff was alighting from a train, an instruction held proper, which told the jury that, in the operation and management of its trains, the defendant owes its passengers the highest degree of care which a prudent and cautious man would exercise,\u2019 reasonably consistent with its mode of conveyance and the practical operation of its trains.\n4. Railroads \u2014 injury to passenger alighting from train \u2014 duty of care. \u2014 Plaintiff, a passenger on defendant railway\u2019s train, while debarking from said train, slipped on some cantaloupe seed on the step of the car, sustaining injuries. Held, the defendant owed the plaintiff a duty to provide a safe means of debarking from its train, and was liable for the damage resulting from its negligence in failing to remove the seed from the steps, its servants having had time to observe and remove the same.\nAppeal from Nevada Circuit Court; Jacob M. Carter, Judge;\naffirmed.\nMcRae & Tompkins, for appellant.\n1. Complaints made by tbe appellee concerning ber injuries to visitors two weeks after tbe accident were not competent, and should bave been excluded. In tbe Jackson case, 93 Ark. 125, rebed on by appellee, the complaints were made immediately after tbe accident. Here they were too remote, and made, moreover, as tbe proof shows, after appellee bad decided upon a suit against appellant. 105 N. Y. 294, 59 Am. Rep. 506; Jones on Evidence (2 ed.), \u00a7 349; 16 L. R. A. 436.\n2. Instruction No. 1, given by tbe court, errs in requiring tbe highest degree of care. That rule applies only to appliances and machinery. See 65 Ark. 255; 111 N. Y. 488; 48 N. Y. Supp. 630.\n3. There is no proof, nor any suggestion of proof, that cantaloupe seed on tbe steps of tbe car caused appellee\u2019s feet to slip, and there was therefore no evidence on which to base tbe fourth instruction. 88 Ark. 454; Id. 594; 89 Ark. 279; 5 Crawford\u2019s Dig., 1679, \u00a7 63, et seq.\n4. The court erred in refusing to give instruction 8, requested by appellant. Without this instruction, an absolute duty was imposed on appellant to remove the seed. Surely, the jury ought not to have been left to infer that the mere presence of the seed on the steps would constitute negligence. 2 White on Personal Injuries, \u00a7 681; 64 N. J. L. 707, 50 L. R. A. 470, 46 Atl. 710; 159 Pa. 364, 28 Atl. 140; 113 Pa. 300; 11 Del. C. Rep. 242 { 27 Ind. App. 500; 69 Atl. 338, 15 L. R. A. 523; 79 N. E. 1094; 35 L. R. A. (N. S.) 592; 179 Mass. 52, 22 Atl. 708.\n5. It is the duty of train employees to exercise reasonable care to discover objects that may be placed on the steps of the coaches, but the carrier is not an insurer that such objects will not be placed or fall thereon. Constant inspection while a train is on a trip is not required, but such inspection only as the employees may reasonably give, consistent with their ordinary duties. Hutchinson on Carriers, \u00a7 957; 97 N. E. (Mass.) 624; 64 N. J. L. 702; White on Pers. Injuries, \u00a7 681.\nJ. O. A. Bush, for appellee.\n1. The first question, the answer to which would tend to bring out any action or expression on the part of appellee tending to show pain, was asked by appellant\u2019s counsel. Testimony subsequently brought out by appellee, of the same character, can not now, even if incompetent, be objected to by appellant. 75 Ark. 251; 86 Ark. 489; 88 Ark. 489.\nBut this testimony was competent. 55 Ark. 258; 93 Ark. 125; 75 U. S. 397, 19 Law. Ed. 439.\n2. Appellee\u2019s testimony as to how the accident occurred is not denied, neither is the testimony of Mrs. Alston that she saw a pile of cantaloupe seed on the step of the car disputed. It is patent that the injury occurred in the operation of appellant\u2019s train. It is liable per se. Kirby\u2019s Dig., \u00a7 6773; 63 Ark. 636; 33 Ark. 816; 49 Ark. 535; 57 Ark. 137; 80 Ark. 19; 73 Ark. 548. There is no error in the instructions." }, "file_name": "0056-01", "first_page_order": 72, "last_page_order": 77 }