St. Louis, Iron Mountain & Southern Railway Company v. Neely

• Decision Date: 03 April 1897
• Citation: 40 S.W. 130,63 Ark. 636
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. NEELY
• Court: Arkansas Supreme Court

40 S.W. 130

63 Ark. 636

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. NEELY

Supreme Court of Arkansas

April 3, 1897

Appeal from Cleveland Circuit Court MARCUS L. HAWKINS, Judge.

Judgment affirmed.

Dodge & Johnson for appellant.

The accident happened upon the premises and right of way of defendant. Neely was a trespasser, and negligence must be alleged and proved. The only duty on the company was to avoid injury after discovering that he had placed himself in a position of peril. All the cases absolve defendant from negligence where there was no scienter, no information or knowledge to put defendant on notice of the probability of an accident occurring. 64 Iowa 762; 28 A. & E. R. R. Cas. 404; 3 id. 498; 29 Oh. St. 364; 8 A. & E. R. Cas. 544; 59 Pa.St 129; 10 Allen (Mass.), 372; 99 Mass. 216; 158 id. 312; 6 A. & E. R. Cases, 5; 83 Ill. 510; 1 Dillon, 579; 97 Mass. 276; 66 N.Y. 243; 41 id. 526; 16 C. C. A. 303; 81 Ia. 426, 430; 108 N.Y. 205; 18 S.E. 782; 66 N.Y. 243; 142 Mass. 296. The burden was on plaintiff to show want of ordinary care on part of defendant. 52 N.Y. 476; 65 N.Y. 348; 80 id. 243; 64 Ia. 762; 75 Me. 380; 53 N.H. 448; 38 N.J.L. 346; 113 Pa.St. 152; 47 Mich. 584; 54 id. 66.

John E Bradley for appellee.

The city ordinance only granted the right of way to the railroad company to use the street in common with the public. 16 Pick. (Mass.) 522; Tiedeman, Real Prop. (2 Ed.) sec. 607; 12 Ia 246; 34 id. 249; 24 Am. & Eng. Enc. Law, pp. 45, 46, 47, and notes; 52 N.J.L. 55; 9 Am. & Eng. Enc. Law, p. 411, and notes; 23 ib. 946-7-8-9, etc.; 112 Ind. 59; 31 A. & E. R. Cas. 432; 28 ib. 655; 58 Am. Rep. 512. The proof of negligence is ample. 54 Ark. 209; 4 L. R. A. 420; 8 id. 798; 116 U.S. 642.

BATTLE J., BUNN, C. J., dissenting.

OPINION

BATTLE, J.

On the 21st of December, 1893, the St. Louis, Iron Mountain & Southern Railway Company was operating and moving one of its freight trains on and along Elm street in the town of Warren, in this state. At this time James F. Neely was returning from his residence to his office on the same street. While the freight train was passing him, a car door fell upon him from its place in a car in the train, and inflicted a serious injury. For the damages suffered from this injury he brought an action against the railway company, and recovered a judgment for $ 500; and defendant appealed.

Two legal questions are presented for our consideration. They are, first, was appellee, Neely, a trespasser upon appellant's right of way, at the time he was injured? and, second, was the burden upon him to show that his injury was the result of the negligence of the railway company?

The railway company contends that he was upon its right of way, and had no right to be there, when he was hurt. It bases this contention upon an ordinance of the incorporated town of Warren, which granted the right of way to its predecessor, the Little Rock, Mississippi River & Texas Railway Company, through the street where the injury occurred. But there is no evidence that the street was vacated or abandoned by the town, or that the public ceased to use it as a highway. On the contrary, the evidence shows that it was continuously and frequently used as a street by pedestrians, and sometimes by wagons. Under these circumstances, the public still had the right to use the street, as well as the railroad company. These rights in most respects were equal and mutual, except that, "as the company can not so readily stop its trains or cars, and is confined to its track, it has the right of way of passage thereon, and persons who are upon the track must leave it, and give way until the train or car has passed." The rights of each must be exercised with a due regard to the rights of the other, in a reasonable and careful manner. Louisville, etc. R. Co. v. Phillips, 112 Ind. 59, 13 N.E. 132; Bryson v. Chicago, etc. R. Co., 89 Iowa 677, 57 N.W. 430; 3 Elliot on Railroads, secs. 1093, 1094, and cases cited.

Appellant further contends that, before appellee is entitled to recover, he must show, by positive proof, that the door of the car fell by reason of its negligence. But a statute of this state provides: "All railroads which are now or may be hereafter built and operated in whole or in part in this state shall be responsible for all damages to persons and property done or caused by the running of trains in this state." In L. R. & Ft. S. R. Co. v. Payne, 33 Ark. 816, this court held that the effect of this statute, in cases where stock has been killed or injured by the running of trains, is to make the railroad company responsible for the damage caused thereby, unless it be shown by the company that it was using due care at the time, or that the damage was not the result of its negligence. In Tilley v. St. L. & San Francisco Ry. Co., 49 Ark. 535, it was held that, according to the ruling of the court in the former case, the statute is equally applicable to injuries by fires, and that when it is proved, in an action against a railroad company for damages caused by a fire, that the fire originated from its engine, it devolves upon the company to exonerate itself from the charge of negligence. In Railway Company v. Taylor, 57 Ark. 136, it was held, that, "where the driver of a team of mules was using the right of way of a railroad company between its main and side tracks for the purpose of unloading freight from one of its cars, having gone there upon invitation of the company, and one of the mules was struck and killed by a passing engine, * * * the killing made a prima facie case of negligence, which cast upon the company the burden of showing that it had used due care." In the last case the court said: "If the plaintiff * * in developing his case had shown that he was wrongfully using the track of the railway as a highway for his mules and vehicle, and had shown no other fact save that the property was injured by the defendant's moving train, he would not have established a prima facie case under the statute, because, upon the case thus proved, he could recover only for a wanton injury, and the statute raises no presumption of wantonness. St. Louis, etc. Railway v. Monday, 49 Ark. 257, 264-5, 4 S.W. 782. But in this case the plaintiff adduced evidence tending to show that, at the time of the injury, he was using the right of way between the main and side tracks by the license and invitation of the company. If that was true, he was not a trespasser, but was there as of right, and the company owed him the duty to observe ordinary care to preserve his property from injury. The fact of injury is therefore evidence of the want of such care; that is, of negligence."

The reasoning upon which these cases rest is applicable to the case before us. For the statute makes railroad companies responsible for damages to persons as well as to property, when they are done or caused by the running of their trains. Under the same circumstances, therefore when the party injured is in no fault, the company should be liable for injuries to the person. Here the appellee was upon a public street at the time he was hurt. He was no trespasser. The railway company owed him the duty to employ reasonable means and exercise reasonable care to avoid injuring him. At the same time it was his duty to use reasonable care in protecting himself. The fact that he was injured by the running of appellant's train is prima facie evidence...