St. Louis, Iron Mountain & Southern Railway Co. v. Grimsley , 90 Ark. 64 ( 1909 )

Wood, J.,

(after stating the facts.) Appellant contends that appellee’s own evidence shows that he was guilty of contributory negligence, and that the court should have so told the jury as matter of law, and should have granted appellant’s request for peremptory instruction, because of appellee’s contributory negligence. The court’s ruling was correct. Appellant did not set up contributory negligence in its answer, and hence it was not an issue in the case. St. Louis, I. M. & S. Ry. Co. v. Philpot, 72 Ark. 23. But, even if it had been pleaded,, it was, at most, only a question for the jury under the evidence, and the court told the jury, in the first instruction given at appellee’s request, to which no objection is urged here, that “ordinary care was required of appellee.” The court also in appellant’s request ten presented the question of appellee’s contributory negligence to the jury. For the above reasons there was no error in the refusal of the court to grant appellant’s prayer numbered seven.

The appellant complains that appellee’s prayer number two given by the court makes appellant an insurer of its premises against all injuries. The request in the first and second sentences was inaccurately worded in telling the jury that it was the duty of appellant to keep its waiting room in a “reasonably safe” condition, and that it was • their duty to inquire whether the seat was in a “reasonably safe condition.” For ■it was the duty of appellant only to exercise ordinary care to keep its waiting room in safe condition. But the third and fourth sentences show plainly that the court intended to and did tell the jury that the point of inquiry was as to whether the waiting room was in an unsafe condition on account of the negligence .of appellant, and that unless such condition existed through the negligence of appellant there would be no liability. While the instruction was not aptly worded, and can not be approved as a precedent, it did not as a whole announce an erroneous principle. The specific objection made to it was that “it did not define negligence, or incorporate the proposition of reasonable care.” But the court in other instructions had told the jury that appellee could not recover unless he proved that appellant knew or by the exercise of ordinary care should have known of the defective condition of the seat. The instructions, taken as a whole, correctly submitted the question of whether or not appellant was negligent in the manner charged in the complaint.

There was no error in refusing appellant’s prayers to the effect that unless appellee was intending to become a passenger at the time of the injury he could not recover. The duty of carriers of passengers to exercise ordinary care to keep their waiting rooms in reasonably safe condition is for the benefit also of those who go there for the purpose of meeting and assisting the incoming or of aiding the outgoing passengers in such friendly offices as may be reasonably necessary for their convenience, comfort and safety. Such persons are upon the premises upon the implied invitation of the railroad company. Railway Company v. Lawton, 55 Ark. 432; St. Louis, I. M. S. Ry. Co. v. Tomlinson, 69 Ark. 489; Montgomery & Eufala Ry. Co. v. Thompson, 77 Ala. 448.

There was no- error in permitting appellee to be recalled after the evidence was closed by appellant for the purpose of showing how much his time was worth, nor in refusing to continue the case at that juncture to permit appellant to rebut the evidence. The matter was in the discretion of the court, and no abuse of discretion is shown.

There was no prejudicial error in the giving of instruction number three on the .measure of damages.

We could not reverse the judgment as excessive under the evidence, even if there were no< other element of damage than the physical injury, and the consequent pain and suffering. The evidence sustained the verdict. The judgment is correct.

Affirm.