Catlett v. Railway Co.

• Decision Date: 18 March 1893
• Citation: 21 S.W. 1062,57 Ark. 461
• Parties: CATLETT v. RAILWAY COMPANY
• Court: Arkansas Supreme Court

21 S.W. 1062

57 Ark. 461

CATLETT v. RAILWAY COMPANY

Supreme Court of Arkansas

March 18, 1893

Appeal from Cross Circuit Court, JAMES E. RIDDICK, Judge.

Alsey Catlett, a boy eleven years of age, by his father as next friend, sued the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for injuries sustained by falling from a moving freight train. The accident happened near the town of Wynne. There is a heavy grade on defendant's road, beginning at or near the town of Wynne, and extending east about one mile. Freight trains ascending this grade are unable to move except at such a slow rate of speed that persons could take hold and climb on. An ordinance of the town of Wynne prohibited boys from climbing on moving trains. A number of witnesses testified that it was the custom of the boys of the town to ride on the train to the top of the hill. They avoided the ordinance by climbing on just outside the corporate limits.

Plaintiff although he had been repeatedly warned by his parents not to climb up on the moving trains, and had been punished once or twice for disobeying them in this regard, had been accustomed to stealing rides in this way. On the day of the accident plaintiff attempted to catch the lower round of the ladder on the side of a box car, missed the ladder, caught a strap, and was jerked under the moving wheels. One foot was cut off, and a part of two toes of the other foot. No one in charge of the train saw plaintiff attempt to get on, or knew anything of the accident at the time. There was evidence that the trainmen knew that the boys were in the habit of stealing rides on the trains at this place. Sometimes they paid no attention to the boys while riding; at other times they made them get off.

The court declared the law as follows:

"The view that I take of this case will render it unnecessary to consider the instructions asked. In actions of this kind for personal injury, to entitle plaintiff to recover, it must appear that the negligence of the defendant was the proximate cause of the injury. To hold the defendant liable in this case, I think there must have been some negligence on the part of the persons operating that particular train that injured Alsey Catlett. Now, Alsey Catlett was not upon the track, either in front or behind the train. He attempted to board it from the side. There is no evidence tending to show that any person in charge of the train saw him at the time or knew that he intended to make such an attempt. To hold the defendant responsible for his injury I should have to hold that the train men were bound to keep a lookout to prevent persons from attempting to board the train, and that their failure to do so was negligence. I do not think that the law imposes any such duty upon persons in charge of a train. The men in charge of this train were simply operating it as under the law they had a right to do, and there is nothing in the evidence tending to show negligence on their part, and nothing to submit to the jury."

The court thereupon said to plaintiff's

"I will give you your choice of taking a non-suit, or I will direct a verdict for the defendant." Plaintiff declined to take a non-suit, and the court thereupon instructed the jury to find for the defendant, which was done. Plaintiff has appealed.

Affirmed.

COUNSEL:

N. W. Norton for appellant.

The defendant is liable upon two grounds: 1. The slow moving train was dangerous machinery and attractive to children, and thereby it became the duty of the company to keep children away, with a vigilance proportioned to the attraction. 2. While the boys were trespassers, it was well known to all the train men that they would be found there, and this being true, they were discovered trespassers. 49 Ark, 257; 28 N.E. 1054; 50 N.W. 407. The question of negligence should have been submitted to the jury. 17 Wall. 665; 2 Thomps. Neg. 1236; 1 S.W. 865; 75 Mo. 653; 2 So. Rep. 178; 30 N.E. 597; 51 N.W. 1047; 18 N.E. 346; 37 F. 54. The court erred in finding as matter of law, that there was no evidence of negligence.

Dodge & Johnson for appellee.

Under the evidence introduced, it was proper for the court, after giving plaintiff a right to take a non-suit which he declined, to instruct the jury to find for the defendant. Had the jury found for plaintiff, it would have been the absolute duty of the court to set the verdict aside. If there is any evidence of any fact that will justify a verdict, how muchsoever the evidence may preponderate to the contrary, then it must go to the jury. But, where there is no evidence, then, as matter of law, there is nothing to go to the jury, and it is the duty and province of the judge to say so. 27 A. & E. R. Cas. 231; 37 Ark. 193; ib. 499; 5 id. 76; 14 id. 708; 8 C. B. (N. S.), 568; 59 Ia. 194; 71 Md. 590; Wharton on Neg. sec. 421; Sh. & Redf. on Neg. sec. 11.

OPINION

COCKRILL, C. J.

A railway company is not bound to keep a lookout to prevent boys from swinging on the ladders of its moving freight trains; and its failure to do so is not negligence. Bishop v. Union R. Co. 14 R.I. 314; C. B. & Q. Ry. v. Stumps, 69 Ill. 409; St. Louis, etc. R. Co. v. Ledbetter, 45 Ark. 246; Hestonville Ry. v. Connell, 88 Pa. 520.

If boys have stolen rides in that way at a given point without remonstrance from the company's trainmen, that fact does not amount to an invitation to do so on another occasion. The boy who attempts it is a trespasser, and the company owes him no duty save not to injure him wantonly. Daniels v. N.Y. & N. E. Ry. 154 Mass. 349, 28 N.E. 283; Morrissey v. Ry. 126 Mass. 377; Wright v. Ry. 142 Mass. 296; Rodgers v. Lees, 140 Pa. 475, 21 A. 399, and cases cited; Shelton v. Ry. 60 Mo. 412; Duff v. Ry. 91 Pa. 458; Chicago etc. R. Co. v. Smith, 46 Mich. 504, 9 N.W. 830.

The appellant argues that a slow moving train is "dangerous machinery," alluring to boys; and that it is therefore negligent of the company to fail to take precaution to keep them off such trains. That is the argument made to sustain a class of cases known as the "Turn-table Cases," the leading one of which is Railroad Co. v. Stout, 84 U.S. 657, 17 Wall. 657, 21 L.Ed. 745. The doctrine of those cases has been much criticized and doubted, and by some courts repudiated. See Daniels v. N.Y. & N. E. Ry. 28 N.E. sup.; Patterson, Ry. Accident Law, sec. 196. Whatever its merits may be, it has never been extended to such length as to control a case like this. See Bishop v. Union R. Co. 14 R. I. sup.; Shelton v. Ry. 60 Mo. sup.

The youth of the person injured will sometimes excuse him from concurring negligence, but no amount of youthful recklessness can supply the place of proof of negligence on the part of a defendant sought to be charged on account of negligence. Patterson's Ry. Accident Law, sec. 75.

There was no proof of negligence on the part of the company. There was therefore nothing for the jury to consider. The court so informed the plaintiff when the evidence was all in, and gave him the opportunity to take a non-suit, but he elected to stand upon the legal sufficiency of his proof, and the court directed a verdict for the defendant.

The constitution provides that "judges shall not charge juries with regard to matters of fact, but shall declare the law." Art. 7, sec. 23.

This provision shears the judge of a part of his magisterial functions, but it confers no new power upon the jury. It was the jury's province before this provision was ordained to pass only upon questions of fact about which there was some real conflict in the testimony, or where more than one inference could reasonably be drawn from the evidence.

The constitution has not altered their province. It commands the judge to permit them to arrive at their conclusion without any suggestion from him as to his opinion about the facts. As Judge Battle expressed it in Sharp v. State, 51 Ark. 147, 10 S.W. 228, "the manifest object of this prohibition was to give the parties to the trial the full benefit of the judgment of the jury, as to facts, unbiased and unaffected by the opinion of judges." If there is no evidence to sustain an issue of fact, the judge only declares the law when he tells the jury so.

"The legal sufficiency of proof, and the moral weight of legally sufficient proof are very distinct in legal idea. The first lies within the province of the court, the last within the province of the jury." Wheeler v Schroeder, 4 R.I. 383. It...