966 MEEKS V. GRAYSONIA, N. & A. RD. Co. [168 MEEKS V. GRAYSONIA,'NASHYILLE & ASHDOWN RAILROAD COMPANY. Opinion: delivered May 25, 1925: 1. CARRIERS—INSTRUCTION IGNORING ISSUE.—Where plaintiff who was waiting in defendant's station while the local mixed freight train on which she was traveling was being switched, desiring to use a toikt, and seeing none in the station, returned to the caboose and was injured while standing in the aisle by an alleged violent jerking of the train, an instruction to find fOr the defendant if plaintiff failed to inquire for the toilet at the station held erroneous as ignoring the'issue as to the afieged- violent jerking of the train, the negligence oomplained of. 2. CARRIERS—PROXIMATE CAUSE OF INJURY.—Where plantiff, who had been waiting in the station while the local mixed freight train on which she was traveling was behig switched, desiring to use a toilet, and seeing none about the station, returned to the caboose, and was injured, while standing in the aisle, by the alleged violent jerking of the train, held that her failure to ask the station -agent 1
ARK.] MEEKS V. CrRAVSONIA, N. & A. RD. CO. 967 • concerning the station toilet was not the proximate cause of the injury. 3. NEGLIGENCE—PROXIMATE CAUSE OF INJURY.—Unless the negligence of defendant proved was the proximate cause of her injury, there can be no recovery. . 4. NEGLIGENCE—PROXIMATE CAUSE.—To warrant a finding that negligence was the proximate cause of an injury, it must.appear that the injury was the natural and probable consequence of the negligence charged, and that it ought to have been foreseen the light of the attending eircInnstances. 5. " CARRIERS—MIXED TRAINS.—While local freight trains are allowed • to carry passengers, the primary purpose of such trains is the • transportation of freight, and passengers electing to ride on such trains are chargeable with notice of such fact. 6. CARRIERS—OPMATION OF MIXED TRAINS.—It is matter of common knowledge that . jolting and jarring are incident to the operation of freiglit trains, and the company is bound to exercise only the highest degree of care that is usually and practically exercised • consistent with the operation .of trains of that nature. 7. CARR1ERS—OPERATION OF MIXED TRAINS.—It is common knowledge :that a good deal of switching is necessary when local freight trains stop at a station, and this fact, together with the age and experience in traveling of the passenger, is to be considered in determining whether the passenger ;was negligent in standing - in the aisle of a caboose while the train was being switched. 8. CARRIERS—PRESUMPrION OF NEGLIGENCE.—Under Crawford & Moses' Dig., § 8562, proof of an injury to plaintiff, caused by the operation of a train on imhich she was a passenger establishes a prima facie ease of negligence against the carrier. CARRIERS—CONTRIBUTORY NEGLIGENCE—JURY QUESTION.—Where pfaintiff, an elderly lady, was injured while standing in the aisle of a freight cahOose, the question whether she was guilty of contributory negligence held, under the evidence, to be a question for •the jury. Appeal from Pike Circuit Court; B. E. Isbell, Judge; reversed. • STATEMENT OF FACTS. . . Mary Meeks sued the Graysonia, Nashville & Ash-down Railroad Company to recover damages by reason of being violently thrown to the floor of a car in which she was riding as a passenger, on account of the negligent operation of said train by the defendant. She alleged specifically that the defendant's negligence con-
968 MEEKS V. GRAVSONIA, N. & A. RD. •Co. sisted in the failure of its agents or employees to couple its train in a reasonably safe manner .• o the coach in which . she was rightfuliY riding As a passenger, and to exercise such care in the operation, of the tTail l: as required by law. • • Mrs. Meeks -was a witness for herself. According to her testimony, she lived at.Mineral Springs; Arkansas, and is eighty-two years of age. ,On the 21st day of September, 1923, she, boarded one of the defendant's local freight trains at Murfreesboro,. Arkansas, , to go to her home at Mineral 'Springs, Arkansas. 'She had purchased a ticket. After the train' reached''NaShtille some one told her that the' train would be there'quite a while, and it yould be better for her. to. go to the' depot and stay there until the train 'was throngU, _with . its switching and ready to depart. 'The persons who advised her to do this went to the depot with her.. After ..Mrs. Meeks had rethained in the waiting-room 'at the 'depot for a while, she went back with a colored w6mah 'to' the • caboose in which ,she had been, riding. .8lie was'fobliged to go, or she would not have gone. She had. gone ,back to the coach to attend to a call of nature, because there was no toilet at the depot. After she had come out of the toilet in the caboose she . stood ih the aisle, talking to the negro woman, for not lenger than five , minutes, and was theri thrown down btother cars being propelled-against the caboose. She waS asked what caused , her to' be thrown down, and answered: "I don't know; the ears came together. I had started to a seat to sit down,. and I was lifted clear up off of the floor, and it threw me down." She then described her injuries. She 'testified that she had enjoyed good health all of her life and was in good physical condition at the time she was injured. On cross-examination she stated that -. she' looked for. a toilet before leaving the waiting-room, .and could .not find any. She went to the -window of the room yhere . the agent usually stayed, -but did not see anybody. ;. She then went to the Caboose with the negro woman, as stated in her' exaMination in chief. One of the trainmen had
MEEKS , ; V. GRAYSONIA",' N. & A. RD. Coi 969' carrie&her baggage from the caboOse , to :the . waiting-room; • The ;negro , woMan told:her 'that the train:was nearly • ready to-• start, and carried her baggage- baCk for. her When • they went , to the 'Caboose. Her -fall -caused- u• fractute : of the long 'bone . of the leg that connects with the hip:- , 1 • • . Aecbrding to the evidence Otthe train . Crew, there. was no siidden or violent . jar or jolt when the train'was coupled With the . cabooSe. in which she was standing at the time: she was injured. One of the train , crew had adVised : her ' to go. . to the depot and stay in the . Avaiting-robmuntil the. train was•ready to depart. . The•Members. of-'ithe ;train Crew: suPposed that she• was-, still the waiting-room 'when the, train was , coupled to :the caboose. '2. "The : •-'station agent testifiedlhat toilets Were provided by: the .. ialleoad corapany_fOr white- and • Colored pas-Seiigers. He denied that Mts. Meeks made -an applica• tion to him on the day in question for information-con- . cerning • • • • !,.,:.The•:jury returned a verdict in favor of the:defendant, • and from the judgment rendered, the ,plaintiff has 'dilly prosecuted an . appeal to this .cOurt. • Feather.4on & Feathen.§ton and Tom .W.;.Campbelt, fOr appellant: • • •••J. G. &ail, for appellee. • • • • i (after .stafing the facts). .Counsel for the plaintiff ask for 'a reversal of th6 judginent• because the court erred-in •giving instruction No. 5 to the • jury • at the , reqUest of -the defendant: : • The instructioh reads as follOw.s: , "The ' court instrncts the 'jury •hat the law requires railroad companies to furniSh toilets, for its pdtrons, and that the plaintiff . is .charged . with knowledge 'of that Tact, and that, if plaintiff neglected failed' -to aSk tbe agent of the defendant for .a key or location of the • toilet, and, by reason of her failure: or neglect to get this information ftom the agent of. the Company, but acted on her own volition and:.theteby • received an injury, then the plaintiff would be guilty of negligence, and you will find for the defendant." .
970 MEEKS- V. GRAYSONIA, N..& A. RD. CO . [168 In the first place, this instruction entirely ignores. the theory upon which the plaintiff predicated her right. of action in this case. In her complaint she alleges . that she was. injured by the negligence of the defendant in, the operation of its train upon which she was riding as a passenger. The particular act of negligence complained of was that the defendant negligently coupled its train to the coach in which she was riding as a passenger, and that she was violently throWn to the floor. Moreover, the fact whether or not the defendant had a toilet at the station, and whether or not the plaintiff. asked the agent for a key to said toilet, was not the proximate cause of her injury. It cannot in any sense be said that the failure of the railroad company to coMply with the statutory requirement of maintaining water-closets at its passenger depots was shown to be the natural and immediate cause of the injury to the plaintiff. The rule is well established in this • State that, .in an action for personal injuries, although the defendant may be shown to have been negligent in some manner, yet, unless the negligence so shown is the proximate cause of the injury complained of, no rec'overy can be had on account of said injury. It has been uniformly held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appea:r that the injury was the natural and probable consequence of the negligence and that it ought ta have ,been foreseen in the light* of the attending circumstances. Pittsburg Reduction Co. Nr. Horton., 87 Ark. 576; St. L: . ce S. F. R. Co. v. Whayne, 104 Ark. 506; St. L., Kennett & S. E. Rd. Co. V. Fultz, 91 Ark. 260; Hays v. Williams,,115 Ark. 406; and Bona v. Thomas Auto Co., 137 Ark. 217. It is manifest that the failure of the defendant to maintain toilets at its station, as required by statute, was not the proximate cause of the injury to the plaintiff, and 'that it could not have foreseen that its failure in this respect would have caused the injury complained of by the plaintiff.
ARK. j MEEKS v. GEANSUNIA, N. & A. ED. Co. 971 The allegation of the complaint is that the defendant was guilty of negligence in the operation .of its train upon which the plaintiff was a passenger and thereby caused her injury. The particular act of negligence complained of was that the other cars in the train were backed against the caboose in which the plaintiff was riding with such violence as to lift her up and throw. her down on the floor. • Instruction No. 5 wholly ignored the plaintiff's theory of the case, and made it the duty of the jury to find for the defendant upon facts which were not the proximate cause of the. injury. Hence it was necessarily prejudicial to the rights of the plaintiff. In view of another trial, we deem it necessary to state that the degree of care required in the operation of freight trains which, by law, may carry. passengers, was not correctly stated in the instructions given at , the request of the plaintiff. While local, freight trains are allowed to carry yassenger . s, the primary purpose of • such trains is the .transportation of freight. Their equipment therefore is adapted to such business, an,d those of the traveling public electing to ride on mixed. trains are charged with knowledge of such facts.. It is a matter of common knowledge that jolting and jarring are incident to the operation of freight trains, and therefore the company is bound to exercise only the highest degree of care that is usually and practically exercised consistent with the operation of trains of that, nature. In this connection it may be also stated to be a matter of common knowledge that a good deal of switching is necessary when local , freight trains stop at a station, and this fact, together with the aie• and experience in traveling of the passenger, are to be considered * in determining whether she is guilty of contributory negligence in standing in the aisle and talking to a fellow traveler. St. L. I M. & S. R. Co. v. Reabbzon, 87 Ark. 109, and case g.cited; St. L. 1. M: & S. R. ,Co. v. Hartvirbg, 95 ' Ark.' 220; Rodgers v; Choctaw, Okla. & Gulf Rd. Co., 76 Ark. 520; and Pasley v. St. L. I. M: & S. R.-Co., 83* Ark. 22.
972 MEEKS V. GHAVSONIA, N. & A. RD. CO. [168 In Pasley v. St. L. 1. M. & S. R. Co:, 83 Ark.. 22, it was held that, while.it is not practical to operate freight trains -without occasional jars and jerks calculated to . throw down and injure careless and inexperienced . per- • sons standing in the car, jars of great, unusual and mmec-essary violence would be evidence of negligence on the. part . of the . trainmen. . The injury to plaintiff was caused by the operation of the train of the defendant, and, under our statute, proof of this fact made a prima, facie case of negligence against the railroad company. Crawford & Moses' DigeSt, § 8562, and cases cited in foot-note. The defendant attempted to overcome the prima . facie case in favor of the plaintiff by introducing-witnesses who testified that the coupling , of the rest of the train to the 'caboose in which the plaintiff was standing at the time she was . hurt '• was not accoinpanied by any unusual jolt or jar, and in fact was a very eaSy coupling.. On the. other hand, -the evidence for the plaintiff' . tendS to show that,. while she was . eighty-twO years old, she'thad been in good health .all of her life, and was a, stnrdy old Woman. She'had left the. Closet, and had only. been standing in the -aisle a few minutes when the acei-dent occurred. • She was talking to a negro woman . .who '1 had;conducted her from the station' to Where the eahoO86. waS standing': As'. the 'Plaintiff eXPressed it; she -had' started to her seat when she Was "lifted clear up off'the • floor", and thrown down when the rest of the train was' coupled' to the 'Caboose. The jury might have legally inferred frona the 'evi-donee for the plaintiff that the train was cotiPled together' with a jar Of great, unnecessary and Unusual violence. If the evidence for the plaintiff was legally 'snfficient, if believed by . the jury,.to warrant a verdict in her favor, we.are not cencerned upon apPcal as to' wherc the weight of the evidence was. This was a question for the trial cOurt in,.determining whether dr not a new:trial should' be' granted. St. L. S. W. Ry. Co. v. Ell.eruwood, 123 Ark, • 428.
ARK.] 973 • It is true that the plaintiff 'would not likely have been hurt if she had been in her seat, but, under the"circumstances . as detailed by her, the question of whether slie . was guilty of negligence was a proper . one . to have been submitted to the jury. For the error in giving instruction No. 5 at the remiest of the defendant the judgment will be reversed, and the cause remanded for a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.