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

• Decision Date: 26 May 1913
• Citation: 158 S.W. 139,108 Ark. 396
• Parties: BURCH v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

158 S.W. 139

108 Ark. 396

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

Supreme Court of Arkansas

May 26, 1913

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Lawrence Circuit Court, Eastern District; R. E. Jeffery Judge; affirmed.

STATEMENT BY THE COURT.

J. T Burch brought suit, as administrator, for damages for the death of his intestate, R. L. Burch, alleged to have been wrongfully caused by the negligence of the railway company. It was alleged that the deceased was a licensee, and on November 17, 1911, while in the discharge of his duty as a lineman for the telegraph company, put his speeder upon the railroad track in front of the station at Hoxie, for the purpose of going south, looking after the telegraph wires. That after he had gone about 150 yards, the employees of the railway company, while running an engine backward in the direction he was traveling, "and without keeping proper lookout for persons upon its tracks, as required by law, and without regard for the life and welfare for plaintiff's intestate, and without sounding proper alarm, or giving proper signals, ran down and over the deceased, wounding and injuring him, from which he suffered great physical pain and mental anguish, and from which injury he died in a short time on the same day." Alleged as an element of damages, funeral expenses in the sum of $ 250, and asked damages for the estate, both actual and exemplary.

The defendant denied the allegations of the complaint; that deceased was a licensee upon its tracks, and that its agents and servants failed to keep a proper lookout for persons upon its tracks, or to give the proper signals and alarms as required by law, as alleged. Denied specifically each allegation of negligence, and plead contributory negligence and assumption of risk of the deceased in bar of the action.

R. L. Burch was a lineman for the Western Union Telegraph Company, and was killed by being run over by the tender of an engine backing south on the appellee company's tracks at Hoxie, on November 17, 1911. He got off of a passenger train, took his speeder off of the train, put it on the track and started south; the train ran on up to the switch, backed the coaches in on the switch and the engine pulled out on the main line, backing south, the direction in which Burch was going. He looked around before the engine struck him, threw up his hands twenty or thirty steps from the engine before he was struck and run over. The testimony is conflicting as to the speed of the engine, it being estimated all the way from eight to thirty-five miles an hour, some of the witnesses saying it was going about twice as fast as the speeder, upon which Burch rode. There was testimony showing that signals for the crossing of the Frisco railroad were given, and that the engine was brought to a standstill, or virtually so, before crossing it, and that shortly after making this crossing, it ran over and killed the deceased. The engine was in charge of a hostler and his helper, who had relieved the crew upon the arrival of the train at Hoxie, and the hostler, an old engineer, stated that Burch was killed while he was backing the engine back to the pit in the yards, after having put the coaches in on the siding. That after they cut loose and pulled out onto the main line, the helper got off at the Frisco crossing; that he looked up and down the track, east and west, saw no trains, and upon the signal from the helper, continued on down south; that he went across the crossing slowly and by the depot, and opened up the engine, and was going faster as soon as he got past the depot, and the Van Noy's building, where the sound would not be so annoying. That he whistled for the dirt road crossing south of the depot some seventy-five yards south of the wye. His attention was attracted to an old woman on the dirt road approaching the crossing, who seemed to be old and infirm. That he did not see Burch on the speeder at any time at all, and supposed he must have gotten on the track when he was looking up and down the Frisco track, when the engine was at a stand-still before crossing. That Burch was killed before he knew there was any one in danger. He heard a voice over by the bank building, and his hand was on the brake valve, and he instantly put it in the emergency, and he had cut off the steam about that time, or before he heard the sound and shut the throttle off. That there was absolutely nothing else that could have been done to stop the engine after he heard the voice of distress, indicating danger. When he put his head out of the window before the engine came to a stop, he saw the wreck of the speeder and the man. He was the first man to reach Burch, and said, "I found him killed and pretty badly mangled. I saw a slight movement of his head. He didn't speak or breathe that I heard or saw." It was a cloudy day and raining, and the wind was blowing from the south. The engine was going about eight miles an hour. Witness thought he was not able to see deceased, because he was on the track so close behind the tender, which obscured him from view. That he could not see a man less than fifty feet in front of the engine's tender.

Tom Lewis, the helper, testified that he was on the engine; that they took the train to the north wye and cut the engine off and came back down the track; that he got off the engine and flagged the crossing; that the engine stopped before reaching the crossing about thirty-five or forty feet; that it was a rainy day and the wind was blowing from the south; that the whistle was sounded twice; that he was on the rear of the tank, swinging back at arm's length from the hand rail, west from the tank and on the left-hand side, with the engine moving backward, going south, standing in the stirrup; that he ran down to the crossing and didn't see anything; looked both ways on the Frisco, and then, with his face toward the engine and his back to the south, he signalled the hostler to come on across, which he did. That he got on the engine and looked down toward the Iron Mountain yards, and did not see anything. That he got down about the Van Noy building and looked down the track again and did not see anything and never did see Burch until he was within about two feet of him. Burch was flagging with his left hand and pulling the speeder with his right, and made an attempt to get off. He threw up his leg, like he had started to get off, and the engine struck him at that time. That he hallooed and signalled the hostler to stop as soon as he saw Burch and the hostler put on the air-brakes. He said that after he looked down the Iron Mountain track at the crossing he turned, and looked up and down the Frisco, and then, with his face toward the engine, signalled the hostler to come on across and caught the left-hand side of the tank and remained in that position until Burch was struck. "It was raining very hard and the wind was blowing in my face, and I had on a rain hat, and it would kind of blow off, and I could not hold my head up is about the only reason that I could give why I couldn't see Burch. The engine whistled two blasts at the Frisco crossing, and then whistled for the dirt road crossing two longs and two shorts is all the sounds, I believe."

Several witnesses saw the occurrence and one testified that Burch was on his speeder going south. He saw the engine before it hit him, looked around, threw his hands up about twenty or thirty steps from the engine before it struck him. The engine was going pretty fast, witness thought about twelve or fifteen miles an hour. He also heard some one halloo, but didn't know whether it was Burch or some one on the engine. When the engine struck him, he ducked right down on the inside of the tracks. Part of the speeder was on one side and part of it on the other. It was torn up. Witness stated he was about seventy-five yards away. When he got to deceased, he was gasping and threw his head back with his mouth open, but witness did not hear him say anything. The train was stopped in about forty feet after it passed over him. This witness said the whistle was sounded before the Frisco crossing was passed, but not afterward, that he heard. It was about 156 yards from the switch where the cars were placed to the Frisco crossing and about 150 yards from the Frisco crossing to where Burch was killed.

Burch came up on the train, the engine of which killed him, and took his speeder off the train when it went up to the switch track to switch the coaches. He went into the depot to get some kind of papers, and came back out to put his car on the track just a few seconds after the train went up, and when the engine was up near the switch, according to this witness who also said that a man could take off and put the speeder on the track by himself. He did not see Burch when he put the speeder on the track, and did not know whether any one helped him or not. The first he noticed him was as the train came across the crossing, and a little boy, standing near, said: "If that fellow don't look out, he is going to get hit by that train," and the train kept going on, and hit him. "I believe the train blowed two whistles before it got to the crossing. I was about 100 yards from him, and Burch was about fifty yards ahead when it whistled; about even with the Van Noy door, something like that." He thought a man could have lifted a speeder off from the time the whistle sounded at the crossing before it struck him, if he had heard it. He was about twice as far from the engine as Burch was. This witness said the engine did not come to a stand-still at the crossing, but slowed down. He ran immediately to the injured man who didn't speak, "but just kinder raised his head and gasped." The engine didn't...