Louisiana & Northwest Railroad v. Willis , 108 Ark. 477 ( 1913 )

Kirby, J.,

(after stating tbe facts). It is insisted for' reversal that tbe court erred in not directing a verdict for appellant and that appellee was guilty of contributory negligence as a matter of law.

It may be regarded as undisputed that appellee boarded tbe car before tbe train started, talked with bis son a minute or two on tbe rear platform and when tbe conductor gave warning that be was ready to go appellee stepped inside tbe coacb, and upon a glance over it discovered that it was crowded, and noticed only one seat not occupied by a passenger, an inside seat, which was filled with bundles and packages, belonging to tbe three young ladies, who occupied tbe two seats facing each other. He braced himself near the door-facing and stood a minute or more talking to another man when the collision occurred, throwing him violently against the stove and breaking his ribs. Another one of the passengers testified that there was a seat unoccupied where he and two other men were seated on two seats facing each other, which appellee could have taken. None of the passengers who were seated were injured, nor was the passenger who was standing with the appellee at the time, although he was thrown to the floor by the jar and jolt.

There was no printed rule, or notice, in the car, warning passengers not to stand in the car, although there was a notice on the outside of the door of the car, warning them against standing on the platform thereof.

In St. Louis, I. M. & S. Ry. Co. v. Harmon, 85 Ark. 507, it was said: “It has never been held by this court, nor do the authorities generally establish the proposition, that in the absence of such rule promulgated and posted by the company for ths protection of passengers standing in the car would as a matter of law constitute negligence, unless the circumstances were such as to render it obviously dangerous to stand.”

* There was no evidence indicating that it was obviously dangerous to stand a minute or so in the coach before being seated and the train was just leaving the station and necessarily proceeding at a slow rate of speed until it could get started, and the injury occurred within thirty-seven rails’ length of the starting point. It can not be said as a matter of law that appellee was bound to proceed instantly and procure a seat at the expense of being unnecessarily hasty in beating other passengers to a seat or in crowding them and removing their bundles from unoccupied seats that he might sit down. He could have been, although he did not say he was waiting for the conductor’s return that he might have him to require the packages removed and furnish him a seat.

Standing in a passenger car is not necessarily negligence as a matter of law, and ordinarily it is a question for the jury, and in this case the passenger’s standing can not be said as a matter of law to have been protracted and unnecessary. Our court has held that a passenger upon a freight train even is not guilty of contributory negligence per se in standing up, unless the standing was so prolonged and uncalled for that the facts could be susceptible of but one conclusion.

In Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 25, it said: “It can not be said as a matter of law that every time a passenger on a freight train arises from his seat, he is guilty of contributory negligence. It is only when his standing is so protracted or so uncalled for that the court can say, as a matter of law, that it is unnecessary and imprudent that the question of his negligence will be taken from the jury.” See also St. Louis, I. M. & S. Ry. Co. v. Harmon, supra; St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227; St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 225; St. Louis, I. M. & S. Ry. Co. v. Richardson, 87 Ark. 104; St. Louis, I. M. & S. Ry. Co. v. Gilbreath, 87 Ark. 572; 6 Cyc. 650; 3 Hutchinson on Carriers, 1216.

This case is not like that of Crum v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 592, relied upon by appellant, and the decision therein is not controlling here.

There the plaintiff stood ten minutes on a freight train while it ran a mile and a half, his excuse being that he was waiting for the ice to melt and cool the water and the court thought the water would have cooled as effectually and as soon without his standing to watch the operation and that the exposure caused thereby was unnecessary and held him guilty of contributory negligence as a matter of law.

The court did not err in refusing to direct a verdict for appellee and the case was properly submitted to the jury on instructions fairly presenting the issues and the judgment is affirmed.