{ "id": 8719698, "name": "Missouri Pacific Railroad Company v. Henry", "name_abbreviation": "Missouri Pacific Railroad v. Henry", "decision_date": "1925-03-02", "docket_number": "", "first_page": "146", "last_page": "151", "citations": [ { "type": "official", "cite": "168 Ark. 146" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "105 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347105 ], "opinion_index": -1, "case_paths": [ "/ark/105/0180-01" ] }, { "cite": "73 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504028 ], "opinion_index": -1, "case_paths": [ "/ark/73/0548-01" ] }, { "cite": "88 Ark. 12", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517156 ], "opinion_index": -1, "case_paths": [ "/ark/88/0012-01" ] }, { "cite": "119 Ark. 179", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718497 ], "opinion_index": -1, "case_paths": [ "/ark/119/0179-01" ] }, { "cite": "110 Ark. 232", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337141 ], "opinion_index": -1, "case_paths": [ "/ark/110/0232-01" ] }, { "cite": "82 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529012 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/82/0393-01" ] }, { "cite": "88 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517139 ], "opinion_index": -1, "case_paths": [ "/ark/88/0225-01" ] }, { "cite": "153 Ark. 77", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362285 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/ark/153/0077-01" ] }, { "cite": "110 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337132 ], "opinion_index": -1, "case_paths": [ "/ark/110/0367-01" ] }, { "cite": "82 Ark. 522", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529080 ], "opinion_index": -1, "case_paths": [ "/ark/82/0522-01" ] }, { "cite": "69 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723340 ], "opinion_index": -1, "case_paths": [ "/ark/69/0380-01" ] }, { "cite": "40 Ark. 298", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897121 ], "opinion_index": -1, "case_paths": [ "/ark/40/0298-01" ] }, { "cite": "163 Fed. 106", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 1911085 ], "opinion_index": -1, "case_paths": [ "/f/163/0106-01" ] }, { "cite": "75 Ark. 479", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502567 ], "opinion_index": -1, "case_paths": [ "/ark/75/0479-01" ] }, { "cite": "61 Am. Dec. 214", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "23 N. E. 973", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "5 Am. Rep. 109", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": -1 }, { "cite": "36 Ark. 867", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "114 N. W. 571", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "100 Mo. 194", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 563167 ], "opinion_index": -1, "case_paths": [ "/mo/100/0194-01" ] }, { "cite": "56 S. E. 748", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "9 L. R. A. (N. S.) 848", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": -1 }, { "cite": "43 L. R. A. 297", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "73 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504028 ], "opinion_index": 0, "case_paths": [ "/ark/73/0548-01" ] }, { "cite": "88 Ark. 12", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517156 ], "opinion_index": 0, "case_paths": [ "/ark/88/0012-01" ] }, { "cite": "119 Ark. 179", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718497 ], "opinion_index": 0, "case_paths": [ "/ark/119/0179-01" ] }, { "cite": "110 Ark. 232", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337141 ], "opinion_index": 0, "case_paths": [ "/ark/110/0232-01" ] }, { "cite": "82 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529012 ], "opinion_index": 0, "case_paths": [ "/ark/82/0393-01" ] }, { "cite": "88 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517139 ], "opinion_index": 0, "case_paths": [ "/ark/88/0225-01" ] }, { "cite": "153 Ark. 77", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362285 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/153/0077-01" ] } ], "analysis": { "cardinality": 563, "char_count": 11824, "ocr_confidence": 0.467, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3919935100463386 }, "sha256": "69d0b62c0e1d4ec48bcdbbd0b90727d4d283d2992c24e2c96807c0d2465f9aa9", "simhash": "1:2cfd6000c4005b15", "word_count": 2065 }, "last_updated": "2023-07-14T17:11:28.689459+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Missouri Pacific Railroad Company v. Henry." ], "opinions": [ { "text": "HUMPHREYS, J.\nAppellee brought suit against appellant in the circuit court of Randolph County to recover damages in the sum of $3,000 on account of an injury received while attempting to 'board its mixed freight and passenger train at Knobel, en route to Peach Orchard. The complaint alleged, in substance, that, on the 5th day of October, 1923, appellee was at Knobel, a junction station on the line of appellant\u2019s railroad, and that he purchased a ticket at Knobel for Peach Orchard, entitling him to ride as a passenger on the local freight train running 'between said towns; that, at the time, said train was switching at Knobel, and that he was informed by those operating the train that, after they got through switching, they would stop at the depot for passengers; that said train passed the depot without stopping, and, while same was moving slowly, he attempted to board the caboose, and was jerked by the train, thrown to the platform, and injured'.\nAppellant filed an answer denying the material allegations of the complaint, pleading contributory negligence and assumption of the risk by appellee in attempting to board the train.\nThe cause was submitted to the court upon the pleadings and testimony, which resulted in a verdict and consequent judgment against appellant for $2,000, from which is this appeal.\nThe first insistence of appellant for a reversal of the judgment is that the court erred in refusing to instruct a verdict for it, because appellee left the caboose after purchasing his ticket and boarding the train; second, that appellee was not at the depot when the local freight train came by, and that he attempted' to board the train 150 feet north of the station platform; and, third, that appellee attempted to board the train when it was moving fifteen miles an hour, and, in doing so, was guilty of such contributory negligence as precluded him from recovering for the injury.\nThe undisputed testimony shows that appellee arrived at Knobel on an incoming train at 1:30 o\u2019clock p. m. ; that he immediately purchased a ticket and boarded the mixed train, then switching in the yard, for Peach Orchard, the point to which he was going; that it was not very light in the caboose, and, after ascertaining that the train would 'stop at the depot for passengers and wiould not leave for forty-five minutes, he got out of the caboose and went up to the depot to await its arrival. We do not think it was incumbent upon appellee to remain in the caboose while the train was being switched about in the yard. It was his right and privilege to debark and wait for the train at the depot. This court held in the case of St. L. I. M. & S. R. Co. v. Glossup, 88 Ark. 225, that \u201ca passenger is not compelled to continuously remain aboard the train until he reaches his destination. He may, at regular stopping places, leave the train for refreshment, exercise, or other matters of convenience or necessity, provided he exercises proper care.\u201d The same doctrine was announced in the recent case of Missouri Pacific Railroad Co. v. Kennedy, 153 Ark. 77.\nThe second reason assigned by appellant in support of its contention that it was entitled to a peremptory instruction is not tenable, for thfe testimony is in sharp conflict as to whether appellee attempted to board the caboose at the depot. The testimony most favprable to appellee upon the point is that he attempted to board the train almost in front of the depot, and where passengers usually get on the train.\nThe third reason assigned by appellant in support of its contention that it was entitled to an instructed verdict is likewise not sound, because the testimony is in conflict as to whether the train was moving slowly or rapidly when appellee attempted to board the caboose. The testimony most favorable to appellee upon the point is that the train failed to stop at the depot for passengers, and that, when he attempted to board the caboose, the train was moving not to exceed four or five miles an hour. This court has held in several cases that the question of whether or not an attempt by a passenger to board1 a slowly moving train constitutes contributory negligence, is one for the jury. Arkansas Cent. Rd. Co. v. Bennett, 82 Ark. 393; St. L. I. M. & S. R. Co. v. Green, 110 Ark. 232; Mo. Pac. Rd. Co. v. Kennedy, 153 Ark. 77.\nThe second insistence of appellant for a reversal of the judgment is because the court instructed the jury to the effect that, if a passenger is injured by a moving train, it is prima fade evidence of negligence on the part of the railroad company operating the train. The instruction is based upon \u00a7 8572 of Crawford & Moses\u2019 Digest, .and is correct. Barringer v. St. L. I. M. & S. R. Co., 73 Ark. 548; St. L. I. M. & S. R. Co. v. Fambro, 88 Ark. 12; Huckaby v. St. L. I. M. & S. R. Co., 119 Ark. 179.\nTlie third insistence of appellant for a reversal of the judgment is because the court gave the following instruction:\n'\u2018You are instructed that the law of Arkansas requires that all railroad' companies operating railroads in this State shall, at all junctions where two or more trains connect, require that all trains carrying passengers departing from such junctions shall depart only from the station-house or depot at such junction.\u201d\nThe instruction is based upon \u00a7 960 of Crawford & Moses\u2019 Digest, and, as given, conforms to the language of the statute. The testimony reveals that the Missouri Pacific Railroad Company owns two lines of railroad connecting at Knobel, one being the main line of the Missouri Pacific, and one a branch line known as the Para-gould and Nettle ton road. Learned counsel for appellant argues that a junction within the meaning of the statute is where main lines of different roads cross. We think \u201cjunction\u201d as used1 in the statute means a place where two or more tracks of a railroad or railroads meet or cross, regardless of whether the tracks are owned by the same or different railroad companies. The language of the statute is \u201cat all junctions where two or more trains connect.\u201d\nThe fourth insistence of appellant for a reversal of the judgment is that the court erred in giving instruction No. 3. It is suggested that the instruction is fatally defective because it left out entirely the requirement that appellee should have exercised ordinary care for his safety, and because it was argumentative. We have read the instruction carefully and find that it fully covers the question of contributory negligence; and, while very long, it is not argumentative, but simply states the facts necessary to sustain a finding for appellee. We do not commend the form and length of the instruction, but find no inherent error in the subject-matter contained therein.\nWe do not regard tlie other suggestions of error contained in appellant\u2019s brief as well grounded, so shall proceed to discuss the claim of appellee on his cross-appeal for the allowance of a reasonable attorney\u2019s fee. The trial court overruled appellee\u2019s motion for the allowance of an attorney\u2019s fee. The claim is based upon \u00a7 85\u00cd of Crawford & Moses\u2019 Digest, which is as follows:\n\u201cIn all actions at law or suits in equity against any railroad company, its assignees, lessees or other person or persons owning or operating any railroad in this State (or) partly therein, for the violation of any law regulating the transportation of freight or passengers by any such railroad, if the plaintiff recover in any such action of suit, he shall also recover a reasonable attorney\u2019s fee, to be taxed up as a part of the costs therein, and collected as other costs are or may be by law collected. \u2019 \u2019\nThe allowance of an attorney\u2019s fee under this \u00a1statute is in the nature of a penalty, and should be restricted to suits based exclusively upon a violation of some \u00a1statute \u00a1and not to suits involving issues of negligence and contributory negligence. This suit involves other issues than a mere failure to stop the train at. the depot in Knobel to receive passengers, as required by \u00a7 960 of Crawford & Moses\u2019 Digest.\nThe judgment is therefore affirmed upon both the direct and cross-appeal.", "type": "majority", "author": "HUMPHREYS, J." } ], "attorneys": [ "Thomas B. Pryor and II. L. Ponder, for appellant.", "Geo. M. Booth and Tom. W. Campbell, for appellee." ], "corrections": "", "head_matter": "Missouri Pacific Railroad Company v. Henry.\nOpinion delivered March 2, 1925.\n1. CARRIERS \u2014 negligence of passenger. \u2014 W here a passenger entered the caboose of a local freight train, and, while the train was switching in the yard, was told by the trainmen that when they got through switching they would stop at the depot, it was not negligence for him to debark and wait for the train at the depot.\n2. Carriers \u2014 negligence in boarding train, \u2014 Whether \u00a1a passenger attempted to hoard a train at the depot or at a distance Ibeyond the platform held for the jury under conflicting testimony.\n3. Carriers \u2014 negligence in boarding train. \u2014 Whether a passenger was negligent in attempting to hoard a moving train held for the jury where the evidence was conflicting as to whether the train was moving slowly or rapidly.\n4. Carriers \u2014 presumption of negligence. \u2014 Where a passenger is injured by a moving train, it is 'prima, facie evidence of negligence on the part of the railroad company, under Crawford & Moses\u2019 Dig., \u00a7 8562.\n5. Carriers \u2014 junction of railroads. \u2014 Under Crawford & Moses\u2019 Dig., \u00a7 960, requiring all passengers trains to depart from a depot \u201cat all junctions where two or more trains connect,\u201d the word \u201cjunction\u201d means a place where two or more tracks of same or different railroads meet or cross.\n6. Costs \u2014 attorney\u2019s fee. \u2014 Under Crawford & Moses\u2019 Dig., allowing an attorney\u2019s fee to the successful plaintiff in an action against a railroad for \u201cviolation of any law regulating the transportation of freight or passengers,\u201d the allowance of an \u25a0attorney\u2019s fee under this statute is in the nature of a penalty, and should be restricted to suits based exclusively upon a violation of some .statute, and not applied to suits involving the issues of negligence and contributory negligence.\nAppeal from. Randolph Circuit Court; John C. Ashley, Judge;\naffirmed.\nThomas B. Pryor and II. L. Ponder, for appellant.\nThe court should have directed a verdict for appellant. This is entirely unlike that in 110' Ark 232, relied on by appellee in the trial court. Appellee was guilty of contributory negligence and not entitled to recover in that he attempted to board a fast moving train, which was an obviously dangerous thing to do. 5 R. O. L. 680'; 43 L. R. A. 297; 9 L. R. A. (N. S.) 848; 56 S. E. 748;. 100 Mo. 194; 114 N. W. 571; 36 Ark. 867; 5 Am. Rep. 109; 92 Am. Dee. 322; 23 N. E. 973. 61 Am. Dec. 214. Instruction No. 1 was error. The fact that appellee was injured by a moving train was not prima facie negligence on the part of appellant. 75 Ark. 479. Before there could be a presumption of negligence on the part of the appellant, the plaintiff must prove that he was in the proper place. 163 Fed. 106; 40 Ark. 298; 69 Ark. 380; 82 Ark. 522; 131 \u00a18. W. 958. Instruction No. 3, based on \u00a7 960, C. & M. Digest, was erroneous, as that statute imposes a penalty fine. 110 Ark. 367.\nGeo. M. Booth and Tom. W. Campbell, for appellee.\nAppellee had the right to leave the train for exercise and air, and in so doing did not lose his character as a passenger. 153 Ark. 77; 88 Ark. 225; 82 Ark. 393. It is a question for the jury to determine whether or not it constituted contributory negligence to hoard a slowly' moving train. 110 Ark. 232; 153 Ark. 77; 82 Ark. 393. Proof that injury was caused by the movement of a train makes a prima, fade case of negligence against Company. 119 Ark. 179; 88 Ark. 12; 73 Ark. 548; 105 Ark. 180. Knobel was a junction, such as is referred to in \u00a7 960 C. & M. Digest, and it was proper to give instruction No. 2. Contributory negligence would not defeat recovery, but only diminish it. 153 Ark. 77. Plaintiff was entitled to an attorney\u2019s fee under \u00a7 851, C. & M. Digest." }, "file_name": "0146-01", "first_page_order": 164, "last_page_order": 169 }