(after stating the facts.) It is the duty of railroads as common carriers of passengers to exercise ordinary care to provide their stations and cars with reasonable appointments for the safety and essential comfort of their passengers. St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, and authorities cited.
The particulars of alleged negligence to which the complaint directs inquiry are: “in not causing to be kept down in its place the trap door over the steps leading into the said car, and in not keeping closed the upright door for the entrance from the ground into said car by means of steps attached thereto, and in keeping said trap door open and said upright door open, and in failing to provide lights on or about the front platform of said car and steps.”
All these allegations of negligence, in the opinion of the majority of the judges, are without evidence to sustain them. The uncontradicted proof that the trap doors to the vestibule coaches were raised in order to enable the brakeman to discharge their duties in the switching of the cars, and that it was customary to raise them in cities the size of Eort Scott should have elicited a verdict in its favor upon all the allegations of negligence except the failure to provide lights on or about the front platform of the car and steps. The proof showed that in cities the size of Fort Scott it was customary to lock the water closets to the coaches. That being true, it was absolutely essential to the comfort of the passengers that they should not be deprived of egress and ingress from and into the cars. The lifting of the trap doors and opening the upright doors to the vestibules, which are alleged as negligent acts, not'only show the absence of any negligence, but the exercise of proper care for the safety and comfort of passengers. For otherwise the passengers, during the time the coach was detained for transfer, would be imprisoned with no opportunity to answer just such a call as appellee had in this case, or any other emergency that the necessities of the situation might demand. This, aside from the requirements of the switching service, shows that these allegations of negligence were groundless.
The majority of the court are also of the opinion that the verdict should have been in favor of appellant upon the undisputed facts on the alleged negligence “in failing to provide lights on or about the front platform of the said car and steps.”
The -testimony of appellee himself, as bearing on this point, is as follows: The reason he came there to the door, he was hunting the water closet; thought he might have got to the wrong door when he tried the one that was locked, and as he come to the door and stopped and looked out, it was so dark that he could not see out there; the dark part is on the side the water closet was on, on the left side. He says on the other side near the depot there was a big light. “I guess it was an arc light, but it did not shine in there.” Says when he came to the door he hammered on the door; thought perhaps the man was still out there. He knocked on the door, and did not hear anything, and he looked and did not see anything out there, and he took a step on the platform and fell to the ground. He was asked if he saw the lights shining in there between the top and the floor of the car on the steps on that side, and answered “No.” He says he did not see any lights; just what little light that comes through the car door.’ He also said that he did not remember to have seen any light on the steps.
The testimony on behalf of appellant shows that the platform was well lighted by electric arc lights on both sides of the track on which the coach was standing when appellee was injured. The whole testimony, taken together, causes the majority to conclude that the appellant had exercised all the care that the law required to light its car platform, that under the circumstances the law did not require that the company have lights in the vestibule of the car. That the lights in the car and from the depot building, and especially the arc lights on •both sides of the track on which the car was located, met every requirement of ordinary care to provide the passengers a reasonaibly safe exit and entrance upon the car, should they desire, for any reason, to debark therefrom while the car was in waiting.
The court is therefore of the opinion that the verdict is contrary to the undisputed evidence, that the trial court erred in refusing appellant’s first prayer for instruction declaring "that the proof has failed to show any act of negligence of the defendant company.”
The court deems it unnecessary to discuss other questions. While voicing the opinion of the majority, I do not concur in the conclusion that the court erred in refusing the first prayer of appellant for instruction. I am of the opinion that Ithe questions of negligence and contributor)'' negligence, upon the whole, were for the jury.
I concur in the judgment of reversal, however, upon the ground that the court erred in admitting the testimony of Ola Larsen. It related to a subsequent trip, by appellee’s son, necessarily under different circumstances, and was therefore clearly incompetent and prejudicial. I am also of the opinion that the court erred in its rulings in granting, refusing and modifying certain prayers for instructions. But my individual views upon these could serve no purpose.
Judge Battue concurs in the judgment of reversal for the reason that in his opinion the undisputed evidence shows that appellee was guilty of contributory negligence. He is of the opinion that the question of negligence -was for the jury.
The judgment is reversed, and the cause is remanded for further proceedings.