Chicago, R. I. & P. Ry. Co. v. Jones
| Decision Date | 19 June 1916 |
| Docket Number | (No. 68.) |
| Citation | 187 S.W. 436 |
| Parties | CHICAGO, R. I. & P. RY. CO. et al. v. JONES. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Perry County; Robt. J. Lea, Judge.
Suit by R. A. Jones, administrator, against the Chicago, Rock Island & Pacific Railway Company and others. From a judgment for plaintiff, defendants appeal. Judgment affirmed.
This was a suit instituted by the appellee, as administrator of the estate of T. W. Edmondson, deceased, against the appellants, to recover damages for the benefit of the widow and next of kin for the alleged negligent killing of Edmondson.
The complaint alleged that Edmondson was walking on the track of appellant along a pathway which was a regular and customary pathway for pedestrians; that appellant's train was in charge of Michael Mann, as engineer, who suddenly and violently ran the train upon Edmondson, killing him; that the killing was the result of a failure of Mann and other employés on the train to keep a lookout as required by the statute; that if such lookout had been kept they could have discovered Edmondson's perilous situation on the track in time to have avoided killing him. The appellant denied the allegations of negligence and set up the defense of contributory negligence.
The testimony on behalf of the appellee tended to show that Edmondson, on the morning of the killing, was intoxicated; that he had his gun and shells, and in this condition was walking upon appellant's track going west from the town of Houston; that appellant's track west from the town of Houston was straight for about a mile. The attention of a witness was attracted by the blowing of the train whistle for the station before the train came in sight. Witness observed Edmondson walking on the track towards the west. The train was approaching him and got so close to him that it threw a shadow over Edmondson, and witness could not see him; but almost immediately afterwards he saw him go up in the air. Edmondson was on the mound between the rails just before he was struck. Witness had been watching him for some time before he was hit and did not see him step off of the track before he was struck. Edmondson was about a half mile west of the depot when he was hit, and the track was clear for half a mile beyond where Edmondson was. The track at that point was downgrade towards Houston. Witness did not hear any ringing of a bell or any alarm whistle until the backup whistle after the accident occurred. It was a little hazy that morning, and the wind was blowing; but witness could see the man on the track. The only whistle that witness heard was the station whistle. Witness did not observe any indications that Edmondson was aware of the approach of the train.
Another witness for the appellee testified that he was at the depot on the platform at Houston and witnessed the accident in which Edmondson was killed. He saw Edmondson walking up the track, and as the train approached him witness watched him more closely, and continued to watch him until he was hit. Edmondson was "walking along up the track with his head down." He never got out from between the rails from the time witness first saw him until he was struck. Witness heard the train whistle for the station before it came in sight. Witness could see something like three-quarters of a mile up the track. The train did not whistle after it whistled for the station until is sounded three back-up whistles after the accident occurred. Edmondson did not seem to be aware of the danger. Just before he was struck, or about the same instant, he seemed to get a little to the right. No bell was ringing. Witness watched Edmondson all the time after the train came in sight, and he remained on the track until he was killed. Witness' attention was attracted to the "condition he (Edmondson) was walking." Witness "thought he was sick, or that something was the matter." Witness could not see "whether he had his hat pulled down over his eyes, but could see he had his head drooped."
It was shown that the people usually walked along the center of the track at this point; that such was the custom. They could walk along the side of the track if they wanted to. One witness testified that:
"West from the point where Edmondson was struck there is a straight unobstructed view for about half a mile. There is nothing to keep the engineer from seeing a man coming up the track. The track is straight for a mile west of the depot.
There was testimony tending to show that when Edmondson was struck he was carried from 40 to 45 feet.
The testimony of the enginer and fireman, who were on the train at the time Edmondson was killed, tended to show that they saw a man coming up the center of the track before the whistle was blown for the station. They got in about two telegraph poles from the man, and started to blow the whistle, when the man stepped off of the track. The engineer's view was then cut off by his engine; he had a large boiler. In a second after the engineer lost sight of the man, the fireman said to him: The engineer put on the emergency and stopped as quick as he could. His train went about 800 or 900 feet before it stopped. When he first saw the man on the track, he was something like four telegraph poles ahead of the engine, and as the engine approached him he stepped off on the fireman's side, and did not get back on the track until after the view of the engineer was cut off by his engine. The engineer did not know that he was struck until his fireman jumped down and threw up his hands. The man was walking towards the engine, and there was nothing in his appearance to indicate that he would not get off, and he did get off.
The fireman testified:
The court instructed the jury:
"If you find from the evidence that the deceased was walking on the track of the...
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