(after stating the facts.) Appellant contends, first, that neither the general verdict nor the special findings are sustained by any evidence. The evidence was conflicting, and susceptible of different conclusions being drawn from it, depending upon the point of view from which it was consid* ered. The jury were the judges of it, and we are of the opinion that their verdict is not without evidence sufficient here to sustain it. The question as to whether or not the plaintiff waited a reasonable time for the promised assistance before attempting, unaided, to alight from the train, under all the circumstances in proof, we think was for the jury. It is not a case where the facts are undisputed, and from which only one conclusion can be drawn.
2. Appellant objects to the following instruction. “If the jury find from the evidence that the plaintiff was a passenger on the defendant’s train for Kensett, and, on arriving at Bald Knob, the conductor or agent called out the name of the station, and directed the plaintiff to get off of said train for the purpose of changing cars and getting on another train, which would carry her to her destination, she had a right to rely on such advice or directions, provided she took no more risks in getting off the train than a prudent person would have taken under the same circumstances.” The objection urged is that it ignores proof on the part of the appellant tending to show the special arrangements made by plaintiff with both the conductor and brakeman for assisting her off the train, and further that under the instruction the jury are left to say “she took no more risks in getting off the train than a prudent person would have taken.” The objection-is not tenable for two reasons. (1.) Thecourtpresented the defendant’s theory as to the special arrangement between plaintiff and the conductor and brakeman for assisting her off the train in its ninth instruction asked by the defendant, and modified and given as follows. “9. If the jury believe from the evidence that defendant’s, employees in charge of the train on which plaintiff was, before the train reached Bald Knob, told plaintiff that she would be assisted off by them, or any one of them, when the train should arrive at Bald Knob, and further told her to wait in the car until he or they should come to assist her, and further find that she did not wait for such assistance, but got off the car by herself, and was injured in so getting off, without having waited a reasonable time for such assistance, you will find for the defendant.” (2.) It was not improper to tell the jury that plaintiff had a right to rely upon the advice or direction of the conductor (although addressed to the passengers generally) to “get off the train,” provided she took no more risk than a prudent person would have taken under the circumstances. Even if the conductor had told her to wait until he came to assist her off, she conld not know but that he was then ready to give her the proffered assistance, and was there at the front end of the car for for that purpose. From his own testimony the jury could have found that he was at the steps assisting passengers off, when his attention was called to plaintiff’s injury. There was proof from which the jury might have found that the conductor was near at hand when plaintiff attempted to alight, and failed to hear when “she called for some one to assist her in getting off,” and therefore failed to assist her off.
There was no prejudicial error in giving instrúction numbered 2, and the first clause of No. 4, asked by the plaintiff, with reference to the duty of defendant to provide ordinarily safe and sufficient platforms, and safe and convenient means of entrance to and departure from their trains; for, although the instructions might not have been properly worded, and, in view of the proof, might have been considered abstract, not having evidence upon which to base them, yet, if error, appellant cannot complain of it as being abstract, when it asked, and the court gave at its request, instructions bearing upon the same subject, numbered 2 and 4. Furthermore, the defendant requested the jury to find specially, “In what did said negligence consist,” and the answer was, “In the conductor not using due diligence'in assisting plaintiff from car, she having previously notified him that assistance would be necessary.” This shows that the other matters were eliminated from their consideration.
Appellant complains of this instruction given at the request of plaintiff: “8. The jury are instructed that contributory negligence is a defense which must be affirmatively proved by the defendant, and the burden is upon them to show such negligence, and it must be established by a preponderance of the testimony.” This is the law, as it applies to the appellant ('defendant), in undertaking to sustain its plea of contributory negligence. If, however, the proof on the part of the plaintiff in the progress of the trial and the development of her case showed contributory negligence, the defendant (appellant) had the right to take advantage of that fact, and to rely upon such proof, just as though it had been introduced by it originally. Where such is the case, the defendant is relieved of the necessity of introducing additional evidence on that point. The court, however, did give an instruction on behalf of the defendant which fully meets the objection as follows: “8. The court instructs the jury that contributory negligence is a complete bar to suits of this character, and if they find from the testimony that whatever injuries may have been received by the plaintiff were due to her lack of care, and the lack of the exercise of ordinary diligence on her part in alighting'from said train, your verdict should be for defendant.” The instructions, taken together, declare the law pertaining to this phase of the case. See Texas & St. L. Ry. v. Orr, 46 Ark. 182; Little Rock & F. S. Ry. Co. v. Cavenesse, 48 Ark. 106; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 334; Little Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 461; Park Hotel Co. v. Lockhart, 59 Ark, 465.
The ninth* instruction was not prejudicial, and we find no error in the ruling of the court in giving the eleventh† at the request of plaintiff, nor in modifying, and giving as modified, the second‡ and ninth|| asked by the defendant.
3. Contributory negligence, under the evidence, was a question for the jury.
4. Although objection was made to the manner of proving the character of the injury by expert witnesses, and although some reference was made thereto in arguing the question of the excessiveness of the verdict, we do not find that the point is reserved in the motion for new trial.
5. While the verdict is large, yet we cannot say from the proof that it was excessive.
Affirm the judgment.
Bunn, C. J., dissenting.The ninth, instruction given at plaintiff’s instance is as follows: “9. They [carriers] are required, to provide all things necessary to the security of the passenger reasonably consistent with their business and appropriate to the means of conveyance employed by them.”
“11. If the jury find from the evidence that the plaintiff, by reason of her physical disability, on account of her age or health, or both (which was apparent to the conductor or porter whose duty it was to look after the safety of the passengers), needed special assistance to enable her to leave the train in safety; being in that condition, she made the same known to the conductor or porter, or either of them, by requesting either of them to render her assistance in leaving the train, which they failed to render to her, or offered to do so within reasonable time; and if you further find that, if assistance had been rendered her by the conductor or porter, the injury would not have occurred, then your verdict should be for the plaintiff; pro. vided, you further find that plaintiff took no more risk in getting off the car than a prudent person would under the same circumstances.”
“2. In her complaint the plaintiff charges that the injuries of which she complains were caused by the defendant carelessly and negligently failing to provide sufficient lights and other means of egress, or assistance within reasonable time, from the car in which she was riding. Unless you find from the evidence that the defendant was negligent in some one or more of the particulars referred to, and that such negligence caused the injuries to plaintiff, your verdict will be for the defendant.”
“9. If the jury believe from the evidence that defendant’s employees in charge of the train on which plaintiff was, before the train reached Bald Knob, told plaintiff that she would be assisted off by them, or any one of them, when the train should arrive at Bald Knob, and further told her to wait in the car until he or they should come to assist her, and further find that she did not wait for such assistance, but got off the car by herself, and was injured in so getting off, without having waited a reasonable time for such assistance, you will find for the defendant.”
The court’s modifications of the second and ninth instructions, as asked by defendant, are indicated by italics.