Catlett v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 18 March 1893
• Parties: CATLETT v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Arkansas Supreme Court

21 S.W. 1062

CATLETT v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Arkansas.

March 18, 1893.

Appeal from circuit court, Cross county; James E. Riddick, Judge.

Action by J. L. Catlett against the St. Louis, Iron Mountain & Southern Railway Company for personal injuries. Defendant obtained judgment. Plaintiff appeals. Affirmed.

N. W. Norton, for appellant. Dodge & Johnson, for appellee.

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. Railway Co., 14 R. I. 314; Railway Co. v. Stumps, 69 Ill. 409; Railway Co. v. Led-better, 45 Ark. 246; Railway Co. v. Connell, 88 Pa. St. 520. If boys have stolen rides in that way at a given point, without remonstrance from the company's train men, 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. Railway Co., (Mass.) 28 N. E. Rep. 283; Morrissey v. Railway Co., 126 Mass. 377; Wright v. Railway Co., 142 Mass. 296, 7 N. E. Rep. 866; Rodgers v. Lees, 140 Pa. St. 475, 21 Atl. Rep. 399, and cases cited; Shelton v. Railway Co., 60 Mo. 412; Duff v. Railway Co., 91 Pa. St. 458; Railway Co. v. Smith, 46 Mich. 504, 9 N. W. Rep. 830. The appellant argues that a slowly 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 "Turntable Cases," the leading one of which is Railway Co. v. Stout, 17 Wall. 657. The doctrine of those cases has been much criticised and doubted, and by some courts repudiated. See Daniels v. Railway Co., (Mass.) 28 N. E. Rep. 283; Patt. Ry. Acc. Law, § 196. Whatever its merits may be, it has never been extended to such length as to control a case like this. See Bishop v. Railway Co., 14 R. I. 314; Shelton v. Railway Co., 60 Mo. 412. 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. Patt. Ry. Acc. Law, § 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 nonsuit, 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." Article 7, § 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. 155, 10 S. W. Rep. 228, "the manifest object of this prohibition was to give the parties to the trial the full benefit of the judgment of the jury on the 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 was said in the case of Railway Co. v. Henson, 39 Ark. 419, that this provision prohibited the judge from directing a verdict for either party, but the other decisions of the court show that the rule there announced is limited to cases where there is some evidence to sustain the issue. Before and after that case was decided, the court, through Chief Justice English, said the practice of directing a verdict was improper "except in cases where there is no evidence to sustain the cause of action or defense, and the court can say so as matter of law, it being the province of the jury to judge of the facts and of the court to declare the law." Overton v. Matthews, 35 Ark. 155; Railway Co. v. Barker, 39 Ark. 499. In Jones v. State, 52 Ark. 347, 12 S. W. Rep. 704, it was said the trial judge should in no case indicate an opinion as to what the facts establish, but that the court must necessarily determine whether there is any evidence at all to establish a given fact in deciding whether a request for a charge based upon a case hypothetically stated should be given or not. In Cline v. State, 51 Ark. 140, 10 S. W. Rep. 225, it was ruled that the provision of the constitution did...