Graysonia-Nashville Lumber Co. v. Carroll

• Decision Date: 19 February 1912
• Citation: 144 S.W. 519,102 Ark. 460
• Parties: GRAYSONIA-NASHVILLE LUMBER COMPANY v. CARROLL
• Court: Arkansas Supreme Court

144 S.W. 519

102 Ark. 460

GRAYSONIA-NASHVILLE LUMBER COMPANY v. CARROLL

Supreme Court of Arkansas

February 19, 1912

Appeal from Howard Circuit Court; Jefferson T. Cowling, Judge affirmed.

STATEMENT BY THE COURT.

This is an action by J. T. Carroll as administrator and J. T. Carroll in his individual capacity against the Graysonia-Nashville Lumber Company for the alleged negligent killing of his wife by one of the railroad trains of said company.

The defendant is a corporation organized under the laws of the State of Arkansas, and owns and operates a lumber plant and several railroad tracks in connection therewith near the town of Graysonia, in Clark County, Arkansas. The defendant owns and operates log trains over a certain track into and through one of its camps about two and a half miles out of said town of Graysonia. The camp and settlement was used by the defendant for the habitation of the employees and their families. There were erected along the side of said railroad track about forty houses up and down the track for a distance of about 150 yards. Mrs. Mollie Carroll and her husband, J T. Carroll, the plaintiff, occupied one of these houses; her daughter, Mrs. Jack Rawlins, occupied another. The house of Mrs. Rawlins was fifty-eight feet on a straight line from the railroad track, and on a path along from it to the tracks it was eighty-four feet. Some time in the early part of January 1911, Mrs. Carroll was at her daughter's house. About 2 or 3 o'clock in the afternoon she left there and started home. She was at the time an able-bodied woman about forty-five years old and in possession of all her faculties. She followed the track above referred to to the railroad, and then walked along the railroad track a distance of 112 feet to a trestle where she was overtaken by one of the defendant's trains and struck by it. She died on the next day, about 11 o'clock, from the effects of the injuries received.

James Shope, a boy between thirteen and fourteen years of age, saw the accident, and testified in regard to it substantially as follows: "I was down there near the scene of the accident and heard the train whistle at the branch over across the hill, and thought I would wait and see the train come in. I could not see it until it came over the hill about a quarter of a mile away. Before the train came in sight Mrs. Carroll came on to the railroad track, and, without looking backward, walked along down the railroad track towards me. She was walking along at a moderate gait and never did look back until just before the train struck her. The train consisted of a Shay engine and three flat cars and was running backwards, the flat cars being in front of the engine. I saw a brakeman on the first flat car in front of the engine. He looked down the track at Mrs. Carroll and then off from her. He then was looking out towards a house, and I did not see him look back towards her again. Mrs. Carroll never did look back until just about the moment that the train struck her. She had walked about twenty-five yards down the track near to a small trestle before she was struck by the train. The train struck her before she got on the trestle. The train got about fifty or sixty feet beyond her before it stopped. The trainmen never did slack the speed of the train after Mrs. Carroll came on the track, nor did they warn her by blowing the whistle or giving her any other signal that the train was approaching."

James H. Gary testified: "I was unloading coal at the chute about seventy-five yards or eighty yards from where Mrs Carroll was struck. Mrs. Carroll was between me and the train. I saw a brakeman sitting on some groceries on a flat car next to the tender. I never paid any attention to what direction the brakeman was looking. When I again looked, the brakeman was walking down the flat car towards its front. Mrs. Carroll was walking along down the track, and had her back to the train, and the brakeman had his face towards her the way she was going. There was no obstruction between him and her, and I heard no bell nor whistle. I did not see the train when it struck her, and don't know whether it slowed up or not. The next I saw was after the woman was struck by the train when I saw the brakeman running down to where she was."

J. T. Carroll (plaintiff) testified; The deceased and I had been married for twenty-six years, and had seven children. She was a good wife, and our relations were pleasant. She was about forty-five years of age when she was killed. The train could have been stopped within six or eight feet."

J. A. Baker testified: "When the train passed my house on the day of the accident, I was sitting on the front porch facing in the direction in which the train was going. After the train had passed my house, something like 150 or 175 feet, I saw Mrs. Carroll. I was looking out over the cars when I saw her. I judge she was something like six feet from the cars. The next I saw of her was a glimpse of her under the car wheels. The engineer was looking down the track towards Mrs. Carroll at the time I saw her. I do not know whether the train struck her before she got on the trestle or not."

W. A. McClellan, testified: "I was the engineer on the log train that struck Mrs. Carroll. I did not see Mrs. Carroll on the track that day. I could not have seen her because of the tank of coal. The engine was running backwards pushing the tender and three flat cars in front of it. I had no knowledge of her presence on the track until the train had passed over her in the culvert there. The engine was making considerable noise as it propelled the train."

The brakeman was not present and did not testify at the trial, but the defendant introduced testimony tending to show that he had left the employ of the company before the suit was commenced, and that after a diligent search they were not able to ascertain his whereabouts.

The culvert or trestle near or on which the defendant was injured was about ten feet long and averaged two and one-half feet in height. There was one place on it between the ties about eighteen inches wide, and it was in this hole that Mrs. Carroll was found after the accident. The witnesses say she was found on her knees with her head sticking out above the trestle. There was a bruised place on each knee, and one on her hip. The skin was not broken on the hip, and did not bleed any. The skin was broken on her right eye, and bled a great deal. Two of her teeth were nearly knocked out. There were no bruises of any character on the front or back parts of her body, and her left arm was cut in two twice, and three fingers mashed on her right hand. She remained conscious for most of the time after she was injured until her death. Other facts will be referred to in the opinion.

The jury returned a verdict as follows: "We, the jury, find for the plaintiff as administrator in the sum of $ 1,000, and for the plaintiff individually in the sum of $ 2,000." From the judgment rendered the defendant has duly prosecuted an appeal.

Judgment affirmed.

D. B. Sain and W. C. Rodgers, for appellant.

1. The court should have directed a verdict for the defendant, because it entirely fails to show that any of the employees in charge of the train discovered the deceased on the track in time to have avoided the injury. 94 Ark. 529; 86 Ark. 306; 54 Ark. 431; 56 Ark. 457; 61. Ark. 549.

2. Deceased was a trespasser upon the track and grossly negligent. There was nothing to indicate that she was not a woman of mature years, in possession of all her faculties and at liberty to leave the track at any time she so willed. The train was running very slowly, and there was no reason apparent why the ordinary presumption that she would leave the track in time to save herself should not prevail. 113 Ind. 234; 47 Ark. 497, 502; 108 N.C. 616; 105 N.C. 140; 113 N.C. 558; 112 Ind. 59; 113 Ind. 196; 55 Kan. 536; 42 Neb. 905.

3. Deceased, in undertaking to use the railroad track as a footway, is presumed to have done so with full knowledge of its dangers and to have assumed the risk. 45 Kan. 503; 97 Ark. 438; 52 La.Ann. 1894; 114 La.Ann. 825.

4. The court erred in excluding testimony detailing the statement of the deceased made shortly after she was injured. It was competent as showing knowledge on her part of the proximity of the train, and as being a declaration against interest. 8 Ark. 510, 571; 9 Ark. 389; 31 Ark. 252; 37 Ark. 580; 58 Ark. 277; 59 Ark. 503; 60 Ark. 26; 74 Ark. 104; 78 Ark. 381; 54 Ark. 336; 77 Ark. 258; Id. 567; Id. 599; Id. 109; 79 Ark. 225; 84 Ark. 373; 87 Ark. 471; 90 Ark. 104. Her declaration would have been competent evidence against her, had she lived to bring suit. It was equally competent against her administrator suing in behalf of her estate.

G. C. Hardin, W. P. Feazel and Mehaffy, Reid & Mehaffy, for appellee.

1. The evidence shows that deceased was unconscious of the near approach of the train and of her peril, and that the train operative saw her in time to have given warning and stopped the train without injuring her. 91 Ark. 18; 89 Ark. 499; 2 Thompson on Negligence, § 1741; 74 Ark. 407.

2. The statement attributed to the deceased was not admissible. It was not competent or relevant because it throws no light upon the question at issue, i. e., whether or not deceased's peril was discovered in time to have avoided the injury by the exercise of ordinary care, and whether or not such care was exercised.

3. There is no error in the instruction on the measure of damages. The amount of damages for pain and suffering must necessarily be left largely to the sound judgment and discretion of the jury. 89 Ark. 541; 48 Ark. 407.

4. Instruction 5 is proper. Kirby's Digest, §§ 6288, 6290; 26 Am. Rep. 396.

OPINION

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