Arkansas Midland Railroad v. Rambo , 90 Ark. 108 ( 1909 )

Hart, J.,

(after stating the facts). Counsel for appellant assigns as error the action of the court in giving the following instruction:

“2. If you believe from the evidence that plaintiff was injured while a passenger on the train of defendant, and that his injuries were caused by the derailment of cars in the train resulting from the defective condition of the track¡ or defective equipments, or negligent operation or handling of the train, he would be entitled to recover in this action such sum as will compensate him for loss of time, expenses, and for the pain and suffering sustained by the plaintiff, as shown by the proof.”

In the case of Railway Company v. Mitchell, 57 Ark. 418, the court said: “In an action against a railroad company for personal injuries, evidence that the coach in which plaintiff was riding as a passenger was derailed and overturned, and that plaintiff was injured thereby, is sufficient to cast upon the company the burden of proving that the injury was not caused by want of care on its part.”

This rule has been recognized and followed ever since. St. Louis, 1. M. & S. Ry. Co. v. Fambro, 88 Ark. 12, and cases cited.

The appellant made no effort to overcome this presumption of negligence. Hence, under the undisputed facts in the case, it was guilty of negligence.

It is claimed that the instruction permitted the appellee to recover if the jury should find the appellant guilty of negligence without containing any qualification in regard to the contributory negligence of appellee.

In the case of Winter v. Bandel, 30 Ark. 362, 376, the court criticised an instruction similar to the one here under consideration, and said that the habit, so common in this State, of stating a single proposition of correct law applicable to the case, but not involving all the law or facts involved, and concluding that on such partial proposition the jury may find for the plaintiff or defendant, as the case may be, is objectionable.

The judgment in that case was reversed, but the instruction criticised was not made a ground of reversal. This form of instruction has been frequently criticised, -and it has been repeatedly held by this court that it is not error to refuse an instruction where such phraseology or its equivalent is used. The question now is, did any prejudice result to the appellant from the instruction ? Contributory negligence is a defense, and the burden of proof in such case is upon the defendant. Aluminum Co. of North America v. Ramsey, 89 Ark. 522, and cases cited.

In this case the court -recognized this to be -the law, and gave -to the jury an instruction prepared by counsel for appellant on the question -of contributory negligence. It can not be doubted that, if his attention had been called to the fact that the qualification .in this respect had been left out of the instruction now under discussion, the trial judge would have corrected it. No such request was made, and only a formal general objection was made to the -instruction. We think it was the duty of counsel to have made a specific objection. The court had told the jury if they found from the evidence that appellee was guilty of contributory negligence he could not recover. This meant if the}' found that fact from all the evidence. We think -the omission complained of was a defect in form and should have been met by a specific objection, calling the court’s attention to the omission and asking that it be corrected. Such is the effect of the following decisions, which are directly in point: Little Rock & H. S. W. Rd. Co. v. McQueeney, 78 Ark. 22; St. Louis Southwestern Ry. Co. v. Graham, 83 Ark. 61; St. Louis, I. M. & S. Ry. Co. v. Puckett, 88 Ark. 204.

Counsel for appellant also complain that the court refused to give appropriate instructions in regard to the ordinary jars and jolts incident to the operation of freight trains. There was no error in this. Such instructions had no application to the facts in the record. The undisputed evidence shows that some of the cars ran off the track, and that the jolt was occasioned by the derailment of the cars, and not by the stoppage -of the train in the usual course of its operation by the employees of appellant.

We can not say that the verdict was ex-cessive. According to -the statement of appellee, -which the jury had a right to believe, he was confined to his bed for three weeks, spit up a good deal of blood, and suffered great pain.

Finding no prejudicial error in the record, the judgment is affirmed.