Cato v. St. Louis Southwestern Ry. Co., 4-3669.

• Decision Date: 28 January 1935
• Docket Number: No. 4-3669.,4-3669.
• Citation: 79 S.W.2d 62
• Parties: CATO et al. v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Arkansas Supreme Court

Page 62

79 S.W.2d 62

CATO et al. v. ST. LOUIS SOUTHWESTERN RY. CO.

No. 4-3669.

Supreme Court of Arkansas.

January 28, 1935.

Rehearing Denied March 11, 1935.

Appeal from Circuit Court, Prairie County, Southern District; W. J. Waggoner, Judge.

Action by Mrs. P. J. Cato and others against the St. Louis Southwestern Railway Company. Judgment for defendant, and plaintiffs appeal.

Affirmed.

J. F. Holtzendorff, of Hazen, and R. Leon Day and Tom W. Campbell, both of Little Rock, for appellants.

N. F. Lamb, of Jonesboro, for appellee.

McHANEY, Justice.

Appellants are the widow and heirs at law of P. J. Cato, deceased. They brought this action against appellee to recover damages for his death, caused by the running of a train. At the conclusion of the evidence for appellants, the court instructed a verdict for appellee and entered judgment accordingly.

The facts briefly stated are as follows: Mr. Cato was a police officer in the city of Stuttgart, 61 years of age, and weighed over 200 pounds. His son last saw him at Pond's Café about 7:30 p. m., November 15, 1933, when he left the café and started walking north on Main street, towards the railroad tracks, about two and one-half blocks away. He was found dead under a car of a freight train of appellee a few minutes later, with both feet cut off. This train had just pulled in from Gillette and De Witt, stations on a branch line of appellee out of Stuttgart, and was standing over the Main street crossing and over the Second street crossing to the west. Mr. Cato attempted to pass under this train or between the cars thereof at a point between Main and Second streets, and, while so doing, the train was started, and he was killed. No one saw him go under the train or between the cars, and it is not shown that any of the trainmen or any one else knew or had any reason to believe that he had done so. Maple street is parallel to Main street, and is the first street west of Main, but it does not cross the tracks. There is an alley between Main and Maple from which on the south a path leads up to the tracks, and Mr. Cato and others had crossed the tracks at this point for a number of years to get to the north side of town. He was run over at about this point, but his body was dragged some eighty feet west or southwest by the train. Appellants contend that the public use of this foot path for a long time makes of it a public highway and gives to the public the right to travel over it the same as if it were a...