Chicago, R. I. & P. Ry. Co. v. Gunn

• Decision Date: 13 April 1914
• Docket Number: (No. 259.)
• Citation: 166 S.W. 568
• Parties: CHICAGO, R. I. & P. RY. CO. v. GUNN.
• Court: Arkansas Supreme Court

166 S.W. 568

CHICAGO, R. I. & P. RY. CO. v. GUNN.

(No. 259.)

Supreme Court of Arkansas.

April 13, 1914.

Appeal from Circuit Court, Monroe County; Jno. D. De Bois, Special Judge.

Action by Jas. Gunn, administrator, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Appellee instituted this action against appellant to recover damages for the death of his intestate, which, it was alleged, was caused by the negligence of appellant. The facts are substantially as follows: An inspector of appellant lived at Brinkley, Ark., and used a speeder on the tracks of appellant in the discharge of his duties. He was not permitted to use the speeder after dark, nor was he allowed to employ any one as a substitute. He did, however, employ Charles L. Hodges to perform his duties for him; but appellant company had no knowledge of this fact. About 11 o'clock on the night of October 11, 1912, Charles L. Hodges, who was a white man, left a negro dance hall in Brinkley with a negro woman and a negro man, to go to Biscoe, a station on appellant's line of railway about 13 miles west of Brinkley. They went on the speeder which Hodges had been using while discharging the duties of the inspector for him. When they got to Biscoe, the negro man, who had been carried along for the purpose of helping Hodges propel the speeder, stayed with the speeder, and Hodges and the negro woman went to a saloon and stayed about an hour. They returned with two quarts of whisky and some beer, and appeared to have been drinking while at the saloon. Hodges and the negro woman both continued to drink on the way home, and the negro man who was with them testified that they were drunk. When they had arrived at a point about one mile west of Brinkley, a passenger train going east struck the speeder, and Hodges was thrown from it and killed. The track of appellant from Brinkley west, as far as Eden, which is 5 miles distant, is perfectly straight. It was dark at the time the passenger train struck the speeder, and the engine on the passenger train had no headlight, except a lantern. The negro man who was on the speeder with Hodges testified that he looked back every time he thought of it, and did not observe the approach of the train until it was about to strike the speeder; that the train was running pretty fast, and gave no warning of its approach; that he jumped off of the speeder just before the train struck it; that he was not drunk at the time, and had only taken one drink of whisky on the trip.

John T. Maloney, for appellant, testified substantially as follows: "I was locomotive engineer on the passenger train that killed Hodges. I took my train out of Little Rock on that night at 1:05 a. m. for Memphis. The engine had an electric headlight on it, and it was in perfect order when I left Little Rock. The headlight was the regular size, and remained in perfect condition until I got to Biscoe. When I got there I had to take the siding, and, in compliance with the rules, I turned the headlight off. When the train for which I took the siding had passed by, I turned on the steam to the headlight, but the headlight would not burn. I examined the wires and lamp in the headlight, and examined the dynamo. I then found that the wire connecting the magneto insulator was broken, and this cut off the current from the headlight. I could not find any wire with which to patch the headlight, and took the porter's lantern and turned the light up to what we would call about four candle power light, and put it in the headlight. I then proceeded on my way at the rate of about 35 miles an hour. When I got near Brinkley, I saw that I was about 45 minutes late, and the train was still running at about 35 miles an hour. I noticed a light on the track about a quarter of a mile ahead of my engine. I was then between Eden and Brinkley, and near what we call the second road crossing out of Brinkley. There is a little dip or sag there. I blew the whistle for the second road crossing out of Brinkley, and as soon as I came out of the sag I blew the road crossing whistle again. When I first saw the light, I thought they had sent a messenger out from Brinkley to see what our trouble was. When I got within about three or four telegraph poles of the light, I said to myself, `The fellow must be walking along;' and I reached up and blew the road crossing whistle again. When I got within about 50 feet of the light, I saw there was a speeder on the track, and blew the whistle four or five times, and slammed on the emergency brake."

On cross-examination, the engineer stated that he could have stopped the train in time to have avoided striking the speeder if he had tried to do so when he first saw the light on the track; that he did not at first see any object on the track, but saw the lantern; that he thought it was either some one coming to meet them to see why the train was late, or that it was a passenger train.

Other evidence will be referred to in the opinion. There was a verdict and judgment for appellee in the sum of $3,000, and the case is here on appeal.

Thos. S. Buzbee and Geo. B. Pugh, both of Little Rock, for appellant. C. F. Greenlee, of Brinkley, for appellee.

HART, J. (after stating the facts as above).

In the case of Chicago, Rock Island & Pacific Ry. Co. v. Bryant, recently decided by this court and reported in 162 S. W. 52, the court said: "Prior to the passage of the new lookout statute quoted above, there was, of course, no liability on the part of a railroad company to trespassers or those guilty of contributory negligence, except on account of negligence in failing to avoid an injury after discovering the perilous situation of the injured party. But the law as it now stands requires the train operatives to keep a lookout for trespassers and all others, and makes the company liable for negligence in that regard, notwithstanding the contributory negligence of the injured party. St. L., I. M. & S. R. Co. v. Gibson, 155 S. W. 510. The Legislature, in passing this statute, necessarily had in view all of the requirements of the law imposed for the protection of persons on the track, and...