Evans v. St. Louis, I. M. & S. Ry. Co.
| Decision Date | 26 October 1908 |
| Citation | 113 S.W. 642 |
| Parties | EVANS v. ST. LOUIS, I. M. & S. RY. CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Pope County; Hugh Basham, Judge.
Action by J. W. Evans, administrator, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for defendant. Plaintiff appeals. Reversed and remanded for new trial.
U. L. Meade, for appellant. Lovick P. Miles, for appellee.
Plaintiff brought this suit as administrator of the estate of David F. Evans, deceased, and also as next of kin of said deceased, against the defendant, to recover damages on account of the killing of said Evans. The complaint alleges, in substance, that Evans was struck and killed by a train of the defendant on the night of July 14, 1907; that it was a starlight night, and that the track was perfectly straight with the view unobstructed for two miles or more east of where Evans was struck and killed by the train; that he and his companion were lying asleep on the north side of the track; that, after discovering him, defendant's servants in charge of the locomotive negligently failed to give any danger signals or check the speed of the train, but recklessly ran into him, thereby causing his death. The railway company answered, making a general denial, and averred that the death of Evans was caused by his own negligence. After hearing the evidence on motion of the defendant, the court directed the jury to return a verdict for the defendant, and the case is here on appeal.
David F. Evans and T. B. Falls lived at Galla Creek, in Pope county. On the night that Evans was killed they had been to visit the sister of Falls in Knoxville, Johnson county. They were each about 20 years of age. They desired to return home that night. The night train did not stop at Knoxville, but did stop at the junction about 2½ miles west of Knoxville. They walked toward the junction, and, it being a warm night, they stopped to rest. Falls went to sleep eight or ten feet from the north side of the track. Falls woke up, and noticed that Evans was lying right up to the end of the ties. He told Evans to get up; that a train was likely to come along and kill him. He remembered Evans raising up. They were waiting for an east-bound train. The body of Evans was lying nearly parallel with the track, and his head was resting on the end of the tie when Falls told him to get up. His head was towards the east. The train which killed him was going west. Falls did not wake up again until the train had half way passed him. He jumped up, and looked down the track, and saw the engineer's head sticking out of the cab on the side he was on, looking back. Falls then began to look for Evans, but did not find him. He then went back to Knoxville. The next morning he and the railroad agent went back, and found the remains of Evans a rail or two west of where he was lying when he was hit. The track was straight 900 feet or more east of where the two boys were lying, and there was nothing to obstruct the view of the engineer. The foregoing was the version given by Falls. George Embrey testified that he was the engineer in charge of the locomotive that killed deceased; that he was running about 35 miles an hour, and was keeping a lookout for people and stock on the track or right of way; that he did not discover that Evans or his companion were human beings until he was 75 feet from them; that he made no effort to stop the train because they were in the clear — that is to say, that the train could pass without striking them — that he did not have time to stop after he discovered that they were human beings; that he made a statement at Knoxville the next day in which he said that he saw two men lying beside the track; that he thought they were in the clear, and thought, if he blew the whistle, he might scare them, and they would jump on the track. James Evans, the brother of the deceased, testified that he discovered blood and hair on the right side of the cowcatcher which resembled the hair of his brother. The testimony also showed that a train composed of the number of cars of the one in question could be stopped with safety to passengers in 200 feet, and, when running 40 miles an hour, in 400 feet.
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Hines v. Betts
...to the jury the question of the negligence of the defendant with respect to the doctrine of discovered peril. Evans v. St. L., I. M. & S. R. Co., 87 Ark. 628, 113 S. W. 642, and St. L., I. M. & S. R. Co. v. Evans, 96 Ark. 547, 132 S. W. It is next contended that the court erred in its instr......