Barry v. Kansas City, Ft. S. & M. Ry. Co.

• Decision Date: 06 January 1906
• Citation: 91 S.W. 748
• Parties: BARRY v. KANSAS CITY, FT. S. & M. RY. CO. et al.
• Court: Arkansas Supreme Court

91 S.W. 748

BARRY v. KANSAS CITY, FT. S. & M. RY. CO. et al.

Supreme Court of Arkansas.

January 6, 1906.

Appeal from Circuit Court, Crittenden County; Allen Hughes, Judge.

Action by Lizzie Barry, as administrator of George Allen Langdon, deceased, against the Kansas City, Ft. Scott & Memphis Railway Company and another, for death of decedent in consequence of being struck by a train. From a judgment for defendants, plaintiff appeals. Affirmed.

The undisputed facts in this case are, that the deceased boarded a passenger train of the appellant at Deckerville, without money or ticket; that he declined to pay fare and was ejected at Gilmore, which was a regular station, with a depot house and a ticket agent; that he then went around the train upon the opposite side, and by stealth climbed upon the platform of the baggage car at the front end, where he was riding with two men when seen by the front brakeman. He rode in this position until the train stopped at Big Creek for the purpose of allowing other passengers to board and leave the train. The hour was 6 p. m; the day the 12th of November; the weather was not inclement. There was at Big Creek a clubhouse 200 yards from the station, with a walk leading thereto, and within 100 yards of the track, and six or eight houses occupied by various people. One of his companions on the platform was a white man and the other a colored man, and the white man, on being ejected, went to the clubhouse for the purpose of obtaining something to eat. The deceased was held by the brakeman, Smith, who was called by the plaintiff, until the train passed, to prevent him from getting on again. He was left standing in a safe place. He conversed with the plaintiff's witness, Aaron Jones, who said that he asked how far it was to Deckerville, and he told him that he had passed Deckerville, and that Deckerville was six miles back, whereupon deceased said he knew his business and started down the track following the train toward Memphis, carrying his grip. According to the testimony of all the witnesses, he stood up while in the passenger car, riding from Deckerville to Gilmore. He was able to run and catch the train at Gilmore. He had a bottle in his pocket and offered both the brakemen whisky, the inference being that this was for the purpose of inducing them to allow him to ride.

The brakeman, Smith, testified that he considered him safer on the ground than upon the platform. There was a depot house, either completely or partly finished, at Big Creek, and there appears to be no reason why he could not as well have obtained entertainment at the clubhouse, or at some of the houses in the vicinity, as he could at any other place upon the line of the road. Clarkton, the next station east,...