Chicago, Rock Island & Pacific Railway Co. v. Caple

• Decision Date: 03 April 1944
• Docket Number: 4-7318
• Citation: 179 S.W.2d 151,207 Ark. 52
• Parties: Chicago, Rock Island & Pacific Railway Co. v. Caple, Administrator
• Court: Arkansas Supreme Court

179 S.W.2d 151

207 Ark. 52

Chicago, Rock Island & Pacific Railway Co. v. Caple, Administrator

No. 4-7318

Supreme Court of Arkansas

April 3, 1944

Appeal from Saline Circuit Court; Thomas E. Toler, Judge.

Reversed.

Thos S. Buzbee and Edward L. Wright, for appellant.

Kenneth Coffelt and J. H. Lookadoo, for appellee.

OPINION

McFaddin Justice.

Appellee, as administrator, filed action against appellants for damages for alleged negligent killing of appellee's intestate. From a jury verdict and judgment thereon for ten thousand dollars, there is this appeal presenting the questions herein discussed.

I. Sufficiency of Evidence to Support Verdict.

At the close of plaintiff's evidence, and again at the close of all the evidence, the defendants moved for an instructed verdict; and now assign as error the denial of these motions by the court. This assignment necessitates a review of the facts, and in the light most favorable to the appellee. (See Arkansas Power & Light Co. v. Connelly, 185 Ark. 693, 49 S.W.2d 387.)

On January 16, 1943, at about four p.m., on a clear day, the deceased, Vera Caple (aged seven years, five months, and three days), with her companion of about the same age, was walking westerly on appellant's railroad track, as the public seemed accustomed to do. She caught her foot in a cattle guard. Twenty-two feet west of where she was caught, there was a road crossing; and eight hundred and two feet west of where she was caught there was a sharp curve to the south in the railroad track and a high earthen bank on either side, so that the view of the cattle guard was obstructed -- at eight hundred and two feet and beyond -- to the engineer or other operative of any train approaching the cattle guard from the west; that is, the distance of observability of the engineer on the train to the cattle guard was at least eight hundred and two feet. The deceased was wearing a bright red hood and coat. While she was thus caught in a cattle guard, a train traveling at a speed of twenty-five to thirty-five miles per hour came around the curve eight hundred and two feet away and proceeded to strike the deceased, knocking her body several feet from the track. She was unconscious at all times from the moment she was struck until her death which occurred less than an hour later. The plaintiff alleged the negligence of the defendants to be the violation of § 11144 of Pope's Digest, which is commonly known as the "Lookout Statute," and which statute, inter alia, requires the operatives of all trains to keep a constant lookout and to exercise reasonable care to prevent injuring any persons discovered in peril on the tracks.

The plaintiff introduced evidence that before the train came around the curve and all times thereafter the deceased and her companion were screaming and waving to the train in every effort to cause it to stop; and one witness nine hundred feet away from the cattle guard saw and appreciated the danger of the child before the train came around the curve: so the engineer on the train, if he had been keeping a lookout, could have likewise appreciated the situation. The plaintiff showed that a man standing on the south rail of the railroad track eight hundred and two feet west of the cattle guard could see the place where the child was struck.

The engineer on the train testified that the front of the train was "between six hundred and seven hundred feet" west of the cattle guard when he first saw the child; and that the train went "between two hundred or three hundred feet" after striking the child. Although the engineer testified that he was at all times keeping a lookout and that he did all that he could to stop the train after discovering the child on the track, still the jury could have found (by using the minimum figures of his testimony) that he stopped the train within eight hundred feet after seeing the child. Since the engineer could have seen her at least eight hundred and two feet away, the jury might have reasonably concluded from the engineer's evidence that, if he had been keeping a lookout when he rounded the curve, he could have stopped the train two feet before reaching the child -- even using his own figures on distance. But there was other evidence: one witness said the train did not slacken its speed until after it struck the child. Another witness (offered by the defendants) said the train (not the engine only) was "clear of the cut" when the brakes were first applied. This evidence would mean that the engine and all five passenger cars had completely rounded the curve before the brakes were applied.

So, without reviewing all the evidence we reach the conclusion that there was sufficient evidence to take the case to the jury on the lookout statute. Some of our cases construing this statute are listed in the footnote to said § 11144 of Pope's Digest and there is no need for us to list them here.

II. Plaintiff's Instruction No. 4.

This reads as follows: "You are instructed that if you find from a preponderance of the evidence in this case that the defendant, W. L. Martins was operating one of the defendant railway company's trains, approaching a crossing at the time and they came through a cut that the defendants had caused to be in a hill, and that this obstructed the view of the operators of the train from the crossing some 800 feet away, and you further find by a preponderance of the evidence that the operators of the train were operating said train at such a rate of speed that they could not stop the train by the time they got to the crossing, and you further find by a preponderance of the evidence in this case that this failure on their part of not having the train under such control to stop it by the time they got to the crossing was the cause of the train striking and killing Vera Virginia Caple, you are told that you can take this into consideration in passing upon whether or not the defendants were guilty of negligence."

W. L. Martins was the engineer on defendant's train. It will be recalled that there was a public crossing twentytwo feet west of the cattle guard; and that the train had to pass the crossing before reaching the cattle guard. In the above instruction the court in effect told the jury that if the train was running so fast that, after rounding the curve, the train could not be stopped at the crossing, then the jury could consider that fact in passing on the question of negligence in the case at bar. This instruction thus argued to the jury that if the train was running so fast that the engineer could not stop the train at the crossing then he might not have been able to have stopped it at the cattle guard where the deceased was fastened. Certainly to discuss the duty of the railroad company to someone at a public crossing between the cattle guard and the curve was to inject a most argumentative issue into the case. We hold that this instruction as given was argumentative and misleading and highly prejudicial. See 64 C. J. 660 and West's Arkansas Digest, "Trial," Key No. 240. Specific exceptions were saved which bring these errors before us.

The case at bar was not a crossing case, because the deceased never reached the crossing. The deceased, in walking along the track was at most a licensee, and the duty that the operatives of the train owed her was measured by the lookout statute. This point was discussed and explained in St. Louis-S. F. Ry. Co. v. Williams, 180 Ark. 413, 21 S.W.2d 611. The question in the case at bar was not what the train operatives might have done regarding someone on the crossing, but what they did, or failed to do, regarding this child with her foot fastened in the cattle guard. They owed her the duty stated in the lookout statute; and to instruct about the crossing was clearly erroneous and prejudicial. This error in giving plaintiff's instruction No. 4 was emphasized and reiterated when the court amended the defendants' instruction No. 2 over defendants' objections.

III. Plaintiff's Instruction No. 5.

This instruction reads: "You are instructed that if you find for the plaintiff in this case, in assessing the damages you may take into consideration the mental suffering and fright the plaintiff's intestate suffered before the train actually struck her, but after she saw the train coming, provided you find from the preponderance of the evidence in this case that plaintiff's intestate did see the train coming and was frightened thereby."

The evidence shows that the deceased lived only a short time after being struck by the train; and there is no allegation or proof of any conscious pain or suffering after the injury. By this instruction the jury was permitted to award damages for mental suffering before the injury. The instruction uses the words "mental suffering and fright" but in this case fright was but another form of mental suffering (15 Am. J. 607); so we come to the question of whether there can be a recovery for mental suffering antecedent to the physical injury or only for mental suffering following or resulting from the injury. To discuss the question necessitates a cataloguing of some of the cases:

A. Where the action is wanton or willful there may be a recovery for humiliation and mental suffering without any physical injury. Such cases are Erwin v. Milligan, 186 Ark. 658, 67 S.W.2d 592; Rogers v. Williard, 144 Ark. 587, 223 S.W. 15, 11 A. L. R. 1115; Lyons v. Smith, 176 Ark. 728, 3 S.W.2d 982. But the case at bar is not such a case as any of these, for the liability here was predicated on negligence as distinguished from willful or wanton wrong.

B. In cases of negligence (or as said in one case "unintentional negligence") where there is no willful or wanton wrong then there can be no recovery for mental...