St. Louis, Iron Mountain & Southern Railway Co. v. Duncan , 119 Ark. 287 ( 1915 )

Kibby, J.,

(.after stating the facts). Appellant contends that the court erred in its refusal to give said requested instruction.

(1) A railway 'company is hound only to the exercise of ordinary care to keep .and maintain its depot houses and approaches thereto in safe condition for the protection of passengers and other ‘ ‘persons who may he rightfully about such premises in other than the capacity of passengers.” St. Louis, I. M. & S. Ry. Co. v. Woods, 96 Ark. 315; Huddleston v. St. Louis, I. M. & S. Ry. Co., 90 Ark. 378; Hodge-Downey Construction Co. v. Carson, 100 Ark. 436.

(2-3) The court instructed the jury properly on this point, .and it is also true that the person rightfully upon such premises is bound to exercise ordinary care for his own safety, and usually to the exercise of such care as is commensurate with the apparent danger to be avoided under the particular 'condition. The said instruction, however, is not an accurate statement of the law, for the plaintiff, notwithstanding she knew that the depot building was being removed .and the workmen were engaged upon it at the time, .and that the plank was only a temporary substitute for steps and appreciated the condition as it existed, was only bound to the exercise of ordinary care for her own protection, which would have been greater care, of course, than was required if the condition had been normal with the usual stationary steps for entry into the room.

The instruction in saying she was required under the condition existing ‘"to exercise for her own protection a higher degree of care than she would if such condition did not exist”, was incorrect and might have been misleading, indicating that care of a higher degree than ordinary care was required. It is true, .as appellant contends, that the instructions given did not include the idea embodied in this one and tell the jury that appellee was required to be more watchful of the condition and careful for her safety under the circumstances as they existed, than if the conditions were usual and normal, and appellant was entitled to an instruction of this kind, if it had asked a correct one, which it failed to do, as we have .already said.

Neither was .an error committed in refusing- appellant’s request to tell the jury that no presumption of negligence arose because of the injury, and that the facts must he proved, etc., since the court instructed the jury properly that the burden of proof was upon the plaintiff, to show by a preponderance of the testimony the negligence of the defendant from which the injury resulted.

The question of contributory negligence under the circumstances of this case was one for the jury, .as was also the question of the damages resulting from the injury, and while it might have found the issues in .appellant’s favor, upon both propositions with substantial testimony to sustain the verdict, it found in favor of the ap-pellee, and its verdict is conclusive upon these matters here..

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