{ "id": 1530669, "name": "Choctaw, Oklahoma & Gulf Railroad Company v. Hickey", "name_abbreviation": "Choctaw, Oklahoma & Gulf Railroad v. Hickey", "decision_date": "1907-02-04", "docket_number": "", "first_page": "579", "last_page": "589", "citations": [ { "type": "official", "cite": "81 Ark. 579" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "75 Ark. 211", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502541 ], "opinion_index": -1, "case_paths": [ "/ark/75/0211-01" ] }, { "cite": "29 Am. St. Rep. 719", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": -1 }, { "cite": "46 Pac. 768", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "6 N. E. 577", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "6 N. W. 486", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "82 Cal. 604", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 4375000 ], "opinion_index": -1, "case_paths": [ "/cal/82/0604-01" ] }, { "cite": "9 How. Pr. 193", "category": "reporters:state", "reporter": "How. Pr.", "case_ids": [ 2195675 ], "opinion_index": -1, "case_paths": [ "/how-pr/9/0193-01" ] }, { "cite": "29 Atl. 462", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "51 N. W. 10", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "64 N. W. 673", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "15 S. W. 981", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "21 S. W. 851", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "43 Ark. 230", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894453 ], "opinion_index": -1, "case_paths": [ "/ark/43/0230-01" ] }, { "cite": "44 Ark. 205", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "65 Ark. 495", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609244 ], "opinion_index": -1, "case_paths": [ "/ark/65/0495-01" ] }, { "cite": "30 Ark. 684", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881098 ], "opinion_index": -1, "case_paths": [ "/ark/30/0684-01" ] }, { "cite": "31 N. W. 656", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "34 Tex. 478", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2139370 ], "opinion_index": -1, "case_paths": [ "/tex/34/0478-01" ] }, { "cite": "13 S. W. 34", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "18 S. W. 734", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "24 S. W. 533", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "21 S. W. 1", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "13 Tex. 464", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2050089 ], "opinion_index": -1, "case_paths": [ "/tex/13/0464-01" ] }, { "cite": "120 Ind. 40", "category": "reporters:state", "reporter": "Ind.", "opinion_index": -1 }, { "cite": "90 Ala. 470", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5573650 ], "opinion_index": -1, "case_paths": [ "/ala/90/0470-01" ] }, { "cite": "58 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329168 ], "opinion_index": -1, "case_paths": [ "/ark/58/0504-01" ] }, { "cite": "60 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903680 ], "opinion_index": -1, "case_paths": [ "/ark/60/0526-01" ] }, { "cite": "42 Ark. 57", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720979 ], "opinion_index": -1, "case_paths": [ "/ark/42/0057-01" ] }, { "cite": "26 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "pin_cites": [ { "page": "408" } ], "opinion_index": -1 }, { "cite": "11 Ark. 720", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728011 ], "opinion_index": -1, "case_paths": [ "/ark/11/0720-01" ] }, { "cite": "36 Ark. 17", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872417 ], "opinion_index": -1, "case_paths": [ "/ark/36/0017-01" ] }, { "cite": "79 Ark. 608", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495621 ], "opinion_index": -1, "case_paths": [ "/ark/79/0608-01" ] }, { "cite": "70 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509516 ], "opinion_index": -1, "case_paths": [ "/ark/70/0385-01" ] }, { "cite": "34 Ark. 632", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875679 ], "opinion_index": -1, "case_paths": [ "/ark/34/0632-01" ] }, { "cite": "26 Ark. 310", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "96 S. W. 116", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "90 S. W. 999", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "69 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "42 Miss. 607", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 297356 ], "opinion_index": -1, "case_paths": [ "/miss/42/0607-01" ] }, { "cite": "79 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495701 ], "opinion_index": -1, "case_paths": [ "/ark/79/0225-01" ] }, { "cite": "74 Ark. 19", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717733 ], "opinion_index": -1, "case_paths": [ "/ark/74/0019-01" ] }, { "cite": "8 So. 86", "category": "reporters:state_regional", "reporter": "So.", "weight": 2, "opinion_index": -1 }, { "cite": "71 Ga. 710", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 30118 ], "opinion_index": -1, "case_paths": [ "/ga/71/0710-01" ] }, { "cite": "20 Wis. 362", "category": "reporters:state", "reporter": "Wis.", "opinion_index": -1 }, { "cite": "18 Wis. 185", "category": "reporters:state", "reporter": "Wis.", "opinion_index": -1 }, { "cite": "15 S. E. 534", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "7 S. W. 3", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "8 So. 711", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": -1 }, { "cite": "50 S. W. 580", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "73 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504028 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/73/0548-01" ] }, { "cite": "54 Ark. 28", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "19 So. 209", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": -1 }, { "cite": "48 N. W. 44", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "13 Ky. 228", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 6807440 ], "opinion_index": -1, "case_paths": [ "/ky/13/0228-01" ] }, { "cite": "73 N. W. 1077", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "87 N. W. 743", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "1 L. R. A. 777", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "114 Fed. 116", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6715120 ], "opinion_index": -1, "case_paths": [ "/f/114/0116-01" ] }, { "cite": "10 S. E. 923", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "7 S. E. 58", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "75 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502559 ], "opinion_index": -1, "case_paths": [ "/ark/75/0465-01" ] }, { "cite": "36 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "59 Ark. 441", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1327691 ], "opinion_index": -1, "case_paths": [ "/ark/59/0441-01" ] }, { "cite": "61 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "34 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875689 ], "opinion_index": -1, "case_paths": [ "/ark/34/0144-01" ] }, { "cite": "23 Ark. 474", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "53 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911707 ], "weight": 2, "pin_cites": [ { "page": "209" } ], "opinion_index": -1, "case_paths": [ "/ark/53/0117-01" ] }, { "cite": "96 S. W. 143", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "59 Ark. 446", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "114 Mo. 514", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 466158 ], "opinion_index": 0, "case_paths": [ "/mo/114/0514-01" ] }, { "cite": "82 Cal. 604", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 4375000 ], "opinion_index": 0, "case_paths": [ "/cal/82/0604-01" ] }, { "cite": "65 Ark. 495", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 609244 ], "opinion_index": 0, "case_paths": [ "/ark/65/0495-01" ] } ], "analysis": { "cardinality": 917, "char_count": 23874, "ocr_confidence": 0.669, "pagerank": { "raw": 2.360280529273907e-07, "percentile": 0.7942225589213888 }, "sha256": "d24267ef0e91805e02b6c1dc2712de9bd4dd5690d425c9a2a4a1ed64d2c06937", "simhash": "1:aeaeb7398c380bfd", "word_count": 4272 }, "last_updated": "2023-07-14T21:26:22.159591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Choctaw, Oklahoma & Gulf Railroad Company v. Hickey." ], "opinions": [ { "text": "Battre, J.\nOn the 23rd day of May, 1902, R. PI. Hickey, in his lifetime, commenced an action against the Choctaw, Oklahoma and Gulf Railroad Company, in the Garland Circuit Court. Plaintiff stated his cause of action as follows:\n\u201cOn the 9th day of January, 1902, plaintiff was on one of defendant\u2019s trains on a through ticket from Memphis, in the State of Tennessee, to the city of Hot Springs, in Arkansas, and while such a passenger the train upon which he was traveling stopped at Little Rock, Arkansas, for the purpose of allowing the passengers on the train to procure dinner.\n\u201cThat plaintiff left said train for the purpose of procuring dinner, and upon his return to said train, and while in the act of boarding the same, while upon the first step leading into the coach on said train, the agents, employees and servants of defendants in charge of and operating said train, wrongfully, negligently, unlawfully and carelessly caused said train to move by a sudden jerk, which caused paintiff to fall from said step violent^ to the ground and underneath said train; that plaintiff at the time was in the exercise of due care, and he was thrown or caused to fall from said step, before he was able to get upon said car in the manner and form as aforesaid, by the wrongful, careless, and negligent acts of the agents and employees of defendant in starting said train; that by said fall the plaintiff sustained severe personal injuries to his back and other portions of his body; that in falling he in some way rolled under the edge of the train as it was moving along, in such position that he could not get out from under said car while the same was in \u2022 motion; that some bystander halloed at him to lie down close to the ground if he wished to save his life, which injunction he obeyed, and the entire train passed over him in that position; that plaintiff\u2019s position was such that, if he had moved in an effort to get out, some portion of the car would have caught his clothing, which would have evidently dragged him to death; that plaintiff realized this fact and remained in that position under the edge of the cars until the entire train passed over him; that plaintiff, during the time that said train was thus passing over him, expected every minute to be caught b)'\u2019 some portion of the car and to be killed, and during such time he suffered untold mental agony and pain; that, by reason of the wrongful, careless and negligent acts of the defendant as aforesaid, plaintiff has been damaged in the sum of ten thousand dollars.\u201d\nThe defendant answered and denied the allegations of the complaint. On the 20th day of November, 1903, the issues in the case were tried in the Garland Circuit Court, and a verdict was rendered in favor of the plaintiff, which was set aside on a motion for a new trial. Subsequently the plaintiff died, and the action was revived in the name of D. H. Hickey, as administrator of L. H. Hickey, deceased, and he filed an amendment to the complaint as follows:\n\u201cThat the said L- H. Hickey died in the city of Lexington, and county of Fayette, in the State of Kentucky, on the 7th day of December, 1903, and that this plaintiff, D. H. Hickey, was duly appointed administrator of the estate of the said L. H. Hickey by the county court of said Fayette County, in the State of Kentucky, on the 21st day of December, 1903, a day of the December term, 1903, of said county court, and that he is now the duly appointed, qualified and acting administrator of the estate of the said L. H. Hickey, deceased; that the said L. H. Hickey left surviving him at his death, Ada Hickey, as a widow, and-Hickey, his son and only heir; that the said--Hickey at the time of the death of the said L. H. Hickey, was five years old; that the death of the said L. H. Hickey resulted from-and was caused by the injuries received by him in falling from the train on the 9th day of January, 1902, in the mannqr as set out and stated in the complaint herein, and resulted by reason of the wrongful and negligent acts and conduct of the defendant and its employees, as stated in said complaint; that the death of the said L. FI. Hickey was produced and brought about by the negligent acts and conduct of the defendant and its employees as set out in said complaint; that after receiving said injuries, the said L. H. Hickey continued to suffer excruciating pain, both of body and mind, as stated in said complaint, and the amendment thereto filed on November 19, 1903, until the 7th day of December, 1903, when he died.\n\u201cThat in the month of May, 1902, soon after said injuries were received by the said L. H. Hickey, he became paralyzed therefrom and totally blind, as stated in his said amended complaint filed November 19, 1903, and remained in that helpless condition, suffering and languishing, until the time of his death; that during the lifetime of the said L. H. Hickey, and prior to the receipt of said injuries, he was an activ\u00e9, industrious man, a devoted father and husband; that he provided for his family a comfortable home and furnished them with all things necessary for their pleasure and happiness in life; that he was a man of good moral habits, and devoted all of his earnings to the benefit of his said wife and child; that by the death of said L,. H. Hickey the said widow and child have been damaged in the sum of ten thousand dollars.\n\u201cWherefore plaintiff prays judgment against the defendant herein in the sum of ten thousand dollars as damages resulting to the estate of the. said L. H. Hickey, and the further sum of ten thousand dollars as damages for the benefit of the said widow and child.\u201d\nThe defendant moved to strike the amendment from the files of the court, because it sets up a cause of action which cannot be joined with that in the original complaint. On the 19th day of June, 1905, this action was taken by change of venue, on motion of the defendant, to Saline County. On the 12th of September, 1905, the motion to strike amended complaint from the files was overruled by the Saline Circuit Court, and the defendant saved exceptions. An answer to the amendment to the complaint was thereupon filed by the defendant, specifically denying each allegation thereof.\nEvidence was adduced by the plaintiff in the trial in the action, which tended to prove, substantially, the allegations in his complaint; and the defendant adduced evidence to prove the contrary.\nThe court instructed the jury, over the objections of the defendant, at the request of the plaintiff, in part as follows:\n\u201c6. If you find from the evidence that the deceased, Hickey, was a passenger on defendant\u2019s train from Memphis to Hot Springs, and while such passenger he left the train at Rittle Rock for the purpose of getting dinner at the place provided for passengers to get meals, and for changing cars for Hot Springs, then it was the duty of the employees of defendant in charge of its Hot Springs train to exercise reasonable care in holding said train a reasonable time for said Hickey to board said train after announcing that the train was ready to depart; and if you find from the evidence that said employees failed to hold said train a reasonable time for said Hickey to board it after announcing \u2018All aboard,\u2019 but negligently started said train while said Hickey was in the act of boarding the same, and was on the first or second step leading to the platform of one of the passenger coaches and in a position likely to be injured, and -that he was thrown or caused to fall from said train by such starting, and was injured thereby, you will find for the plaintiff.\n\u201c7. Whether or not the servants of defendant in charge of its train used reasonable care toward the deceased, Hickey, depends on all the circumstances surrounding the parties at the time of the accident. If said Hickey was lame, and hi's motion was retarded on that account, and his condition was known to the servants of the defendant in charge of the train, then that fact should be considered by the jury in determining whether or not they exercised reasonable care towards him.\n\u201c8. If you find from the evidence that the deceased, Hickey, fe.ll from defendant\u2019s train by reason of the moving or running of said train, and was injured thereby, then the presumption is that said Hickey received said injury on account of the negligence of defendant.\u201d\nAnd gave the following at the instance of the defendant:\n\u201c2. You are instructed that it was the duty of the defendant to announce the departure of its trains a sufficient length of time to enable the deceased in the exercise of reasonable diligence to get aboard same before it started, and it was the duty of the deceased, upon hearing such announcement, to use reasonable diligence to get aboard said train before it started.\n\u201c7. If you find from the evidence that deceased was thrown to the ground by the movement of the train, and that defendant was not negligent in starting the train at the time defendant did, then you cannot find for the plaintiff unless you find that said movement by which deceased was thrown to the ground was negligent and unnecessary in the handling of said train.\n\u201c10. If you find from the evidence that defendant\u2019s con-ductor announced that defendant\u2019s train was ready to depart by calling \u2018All aboard,\u2019 or in any other manner, and that plaintiff, after hearing said announcement, failed to use ordinary diligence to get aboard said train, and was injured by attempting to get on said train after it had started, then he was guilty of contributory negligence, and cannot recover..\n\u201c13. If you find from the evidence that deceased was guilty of negligence or want of ordinary care which contributed in any manner to produce his injury, then he cannot recover in this case; and in determining this question you may take into consideration deceased\u2019s physical condition at the time.\n\u201c15. Before the plaintiff can recover, he must show by a preponderance of the testimony that the condition and death' of deceased, which he alleges was the result of said accident, was caused thereby; and if he failed to establish this fact by a preponderance of the evidence, he cannot recover.\n\u201c17. If you find that Hickey failed to use due diligence to get aboard the train after the announcement of \u2018All aboard\u2019 was given, but after the train started attempted to board same, and was injured thereby, then he was guilty of contributory negligence, and plaintiff cannot-recover.\u201d\nAnd gave instructions asked for by defendant, after modifj - ing them by interlining them with the words in brackets, as follows :\n\u201c4. If defendant\u2019s conductor announced the departure of. its train a sufficient length of time before starting for deceased to conveniently get aboard the same, and without any fault of defendant\u2019s servants he failed to do so, and the conductor, not knowing [or having no reasonable grounds to suspect] that he was in the act of boarding the train, caused the -train to start while he was so attempting to board it, then the defendant would not be liable.\n\u201c5. If the defendant\u2019s conductor announced the intended departure of defendant\u2019s train a sufficient length of time before starting for deceased by the use of ordinary diligence to have got aboard, then it was not incumbent upon him to make separate inquiry of persons about the depot as to whether or not they intended to take passage on the train, but he had the right to start said train unless he knew [or had reasonable grounds to suspect] that the deceased -was endeavoring to board same.\n\u201c6. If you find that, before the train started on which deceased intended to take passage, defendant\u2019s agents gave him notice that the -train was about to depart and in time for him to have got on it by the exercise of reasonable diligence, and those in charge of the train did not know [or had no reasonable grounds to suspect] that he had not yet got aboard, then they had a right to presume that he was on the train.\u201d\nAnd refused to give the following instructions which were requested by the defendant:\n\u201c9. If you find that defendant\u2019s train was started in a careful and cautious manner, and without any jerk or jar other than that incident to the proper handling of trains, then the defendant will not be liable to plaintiff for injuries caused thereby.\n\u201c12. You are instructed that defendant was under no obligation to hold its train for deceased to purchase cigars and attend to other private matters; and if he stopped for such purposes, when by going direct to the train he could have got aboard the same before it started, then he was guilty of negligence, and plaintiff can not recover.\n\u201c14. If you believe from the evidence that deceased had got on the first Or second step of defendant\u2019s train, and was injured by the starting thereof, this would not entitle him to recover, if it also appears that the train was started in a careful and prudent manner, and that the injury was caused by the motion usually and ordinarily incident to the movement of passenger trains.\"\nThe jury returned a verdict for plaintiff for the estate for $2,000, and for the widow and next of kin for $3,000; and the defendant appealed.\nThere was no misjoinder of causes of action in the complaint and amendment. The statute provides: \u201cSeveral causes of action may be united in the same complaint where each affects all the parties to the action, may be brought in the same county, be prosecuted by the same kind of proceedings, and all belong to one of the following classes: * # sjs * * * *\n\u201cSixth. Claims arising from injuries to person and property.\u201d Kirby\u2019s Digest, \u00a7 6079. The causes of action in this case affect all the parties to the action, may be brought in the same county, be prosecuted by the same kind of proceedings, and are claims arising from injuries to the same person'; and come within the letter and spirit of the statute.\nWhile the second cause of action could not have been brought into this action by an amendment without the consent of the defendant, it (defendant) waived all objections to the same by answering. Thompson v. Brazile, 65 Ark. 495; Holt County v. Cannon, 114 Mo. 514; Witkowski v. Hern, 82 Cal. 604; 1 Enc. Pl. & Pr. 573, and cases .cited. \u201cThe filing of the amendment setting up an entirely separate and distinct cause of action, and the answer to it of appellant, were equivalent to, and not distinguishable from, the bringing of a new action.\u201d \u201cIn answering\u201d the appellant \u201centered his appearance, and waived summons. The same result was reached as would have been accomplished had a new and original complaint been filed. In that case the appellant could have entered its appearance, as it did, and waived summons, \u201cand the same end would have been obtained as was reached by the filing of the amendment. The legal effect of the two proceedings is the same.\u201d Wood v. Wood, 59 Ark. 446.\nAppellant objects to the instruction given at the request of appellee numbered 6 because it \u201ctold the jury that it was the duty of the employees of defendant in charge of its train to exercise reasonable care in holding said train a reasonable time for said Hickey to board,\u201d etc. Instruction numbered 2, given at the request of appellant, told the jury substantially the same thing. It cannot complain on this account.\nAppellant\u2019s objection to the instruction numbered 7 given at the request of plaintiff is the last sentence. The court did not tell the jury what effect to give to the facts mentioned therein, but that they should consider them in determining whether or not defendant\u2019s servants exercised reasonable care towards Hickey. Their effect was necessarily controlled and determined by other instructions. The instruction numbered 7 given at the request of the defendant obviates any valid objection to instruction numbered 8 given at the request of the plaintiff.\nThe modifications of instructions numbered 4, 5 and 6, given at the request of defendant, did not affect their legal effect. \u201cNot knowing,\u201d \u201cor having no reasonable grounds to suspect,\u201d \u201cknew,\u201d or \u201cknow,\u201d \u201cor had reasonable grounds to suspect,\u201d are legal equivalents.\nThe requests of the defendant for instructions numbered 9 and 14 were properly refused by the court. They deny to plaintiff the right to recover under any circumstances, even though the train was started before a reasonable or sufficient time had been allowed to get aboard; and so far as correct or applicable they are covered by other instructions.\nThe request of the defendant numbered 12 was properly refused. It denied to plaintiff the right to recover if he stopped for certain purposes when by going directly to the train he could have got aboard of it before it started, notwithstanding the jury might have found that the train did not remain still a reasonable time, after the passengers were notified-to get aboard, for all of them to do so, and notwithstanding there was evidence tending to prove that he was thrown to the ground by the train starting suddenly with a jerk while he was on the first or second step leading to the platform of one of the passenger coaches. It makes the right of plaintiff to recover to depend entirely and exclusively upon two facts specified therein.\nThe evidence, though unsatisfactory, was sufficient to sustain the verdict.\nJudgment affirmed.", "type": "majority", "author": "Battre, J." } ], "attorneys": [ "B. B. Pierce and Buzbee & Hicks, for appellant.", "Wood & Henderson, for appellee." ], "corrections": "", "head_matter": "Choctaw, Oklahoma & Gulf Railroad Company v. Hickey.\nOpinion delivered February 4, 1907.\n1. Actions \u2014 joinder oe causes.- \u2014 An action on behalf of the estate of a deceased person to recover damages for lilis negligent killing may, under Kirby\u2019s Digest, \u00a7 6079, be united with a -similar action arising out of the same injury, brought on behalf of his widow and next of kin. (Page 587-)\n2. Amendment \u2014 waiver op objection by pleading over. \u2014 Objection to an amendment to a complaint that it sets up a separate cause of action is waived by filing an answer to it. (Page 587.)\n3. Appeal \u2014 invited Error. \u2014 Appellant can not complain of an instruction given at appellee\u2019s instance if appellant asked substantially the same instruction. (Page 588.)\n4. Carrier \u2014 -starting train prematurely \u2014 instructions.\u2014Where defendant railroad company, in a suit for negligently injuring a passenger by prematurely starting its train, asked an instruction that if defendant\u2019s conductor announced the departure of the train a sufficient length of tim\u00e9 for the passenger to get aboard, and, not \u201cknowing\u201d that .such passenger was in the aot of boarding the train, caused it to start, then defendant would not be liable, it was not error-to insert after the word \u201cknowing\u201d the words \u201cor having no reasonable grounds to suspect,\u201d as the phrases are equivalent. (Page 588.)\n5. Same \u2014 refusal oe instructions. \u2014 In an action again-st a railroad company for injuries to a passenger caused by defendant\u2019s negligence in starting its train prematurely, causing the passenger to be thrown down and injured, it was not error to \"refuse to instruct that plaintiff was not entitled to recover if he stopped for certain purposes when by going directly to the train he could have got aboard before it started, notwithstanding the j ury- might have found that the train did not remain still a reasonable time, after the passengers were notified to get aboard, for all of them to do so, and notwithstanding there was evidence tending to prove that he was thrown to the ground by the train starting suddenly with a jerk while he was on the first or second step of the coach. (Page 589.)\nAppeal from Saline Circuit Court; Alexander M. Duifie, Judge;\naffirmed.\nB. B. Pierce and Buzbee & Hicks, for appellant.\n1. The court erred in overruling appellant\u2019s motion to strike out the amendment to the complaint because (1) it set up a new and distinct cause of action which (2) did not exist at the time the original complaint was filed; (3) the facts stated in the amendment were not material to the case set up in the original complaint; (4) the additional cause of action cannot be joined with that in the original complaint because (a) each kind of action does not affect all the parties to the action, and (b) both causes of action do not belong to one of the classes allowed to be joined. Kirby\u2019s Dig. \u00a7 6081; Id. \u00a7 \u00a7 6285, 6289; Id. \u00a7 6079; 96 S. W. 143; 53 Ark. 117; 1 Enc. PI. & Pr. 547; Id. 209; 23 Ark. 474 ; 34 Ark. 144; 61 Ark. 253; 59 Ark. 441; 36 Ark. 465; 75 Ark. 465; 7 S. E. 58; 10 S. E. 923; 114 Fed. 116; 1 L. R. A. 777; 49 E. R. A. 285; 52 Id. 414; 87 N. W. 743; 73 N. W. 1077; 13 Ky. 228; 48 N. W. 44; 19 So. 209.\n2. A railroad company discharges its duty toward its passengers when it announces the departure of its train a sufficient length of time before starting it to enable the passengers by the use of reasonable diligence to get aboard, and the conductor has the right, when that time has elapsed, to presume without further inquiry that all who desired to take passage are aboard, and to start the train. 54 Ark. 28; 73 Ark. 548; 3 Thompson\u2019s Com-on Law of Negligence \u00a7 2855; 24 Am. & Eng. R. R. Cas. (N. S.) 922 note; 47 Id. 533; 50 S. W. 580; 48 Id. 58; 8 So. 711; 7 S. W. 3; 33 Ain. & Eng. R. R. Cas. 520; 21 Id. 374; 26 Id. 162; 15 S. E. 534; 50\u2018Mo. App. 561; 18 Wis. 185; 20 Wis. 362; 71 Ga. 710; 8 So. 86.\nAn instruction telling the jury that it was the duty of the employees of defendant to exercise reasonable care in holding said train a reasonable time for Hickey to board, etc., imposed too great a duty on appellant.'\nInstruction numbered 7, given for appellee, imposed a duty on appellant not required by law, and left the jury to find facts not supported by the evidence. 74 Ark. 19; 79 Ark. 225. If the conductor had known of Hickey\u2019s lameness, he also had the right to presume that he would so time his movements as to get aboard within the time allowed for the stop, and appellant\u2019s employees were under no obligation to act as nurses or attendants upon him. 42 Miss. 607.\n' Conceding that the eighth instruction given for appellee is the law, still the issue was not fairly submitted to the jury because the court refused to give instructions as to what was or was not negligence in the movement or handling of appellant\u2019s trains, or to tell them the effect of evidence showing a proper handling of its trains. \u201869 Ark. 137; 90 S. W. 999; 96 S. W. 116.\n3. The verdict is not supported by the evidence; or, if it can be said that there is evidence to support-the verdict, it is so inconsistent, and unreasonable, and so completely contradicted both by testimony and physical facts as to make the' verdict clearly contrary to the weight of the evidence and to shock the sense of justice. 26 Ark. 310; 34 Ark. 632; 70 Ark. 385; 79 Ark. 608.\nWood & Henderson, for appellee.\n1. There was no error in refusing to strike out the amendment to the complaint. 23 Ra. Ann. 612; 36 Ark. 17; 11 Ark. 720; 26 Ark. 336; Id., 408; 42 Ark. 57; Kirby\u2019s Dig. \u00a7 \u00a7 6145, 6148; i.Enc. PI. & Pr. 464; 60 Ark. 526; 58 Ark. 504; 90 Ala. 470; 120 Ind. 40; 13 Tex. 464; 21 S. W. 1.011; 24 S. W. 533; 18 S. W. 734; 13 S. W. 34; 34 Tex. 478; 31 N. W. 656; 1 Enc. PI. & Pr. et seq.; Id. 552.\nIf it should be held that the amendment was not proper, appellant waived its objection by answering instead of standing on its motion to strike. 30 Ark. 684; 65 Ark. 495; 44 Ark. 205; 43 Ark. 230; 1 Ene. P\u00cd. & Pr. 573; 21 S. W. 851; 15 S. W. 981; 64 N. W. 673; 51 N. W. 10; 29 Atl. 462; 9 How. Pr. 193; 82 Cal. 604.\n2. If a railroad company knows, or by the exercise of reasonable care ought to know, that a passenger is in the act of getting on or leaving a train, and in such position as to be liable to suffer injury from the moving of the train, it is guilty of contributory negligence in causing the train to move. 6 N. W. 486 ; 8 So. 86; 6 N. E. 577; 46 Pac. 768; 29 Am. St. Rep. 719; 6 Cyc. 613; 5 Am. & Eng. Enc. of L. (2 Ed.), 577, 578; 73 Ark. 548; 75 Ark. 211.\nThere is sufficient evidence to support the verdict." }, "file_name": "0579-01", "first_page_order": 599, "last_page_order": 609 }