Hines v. Johnson

• Decision Date: 01 November 1920
• Docket Number: 218
• Citation: 224 S.W. 989,145 Ark. 592
• Parties: HINES v. JOHNSON
• Court: Arkansas Supreme Court

224 S.W. 989

145 Ark. 592

HINES v. JOHNSON

No. 218

Supreme Court of Arkansas

November 1, 1920

Appeal from Benton Circuit Court; W. A. Dickson, Judge; reversed.

Judgment reversed and cause remanded.

James B. McDonough, for appellant.

1. The court should have directed a verdict for appellant. 129 Ark 77; 215 S.W. 589; 124 Ark. 523. The Kansas City Southern Railway Company was not operating the road at the time of the injury. Under the Federal Control Act of Congress, March 21 1918, and the Transportation Act of 1920, the railroad company was not liable at all. The deceased was a trespasser although a child of seven years. 66 Ark. 495. The presence of the rail on the track was not the proximate cause of the injury, 62 N.E. 265, nor was the failure to whistle for the crossing the proximate cause. Neither the presence of the rail nor failure to whistle could as matter of law be the proximate cause. 84 Ark. 270; 36 Id. 371; 108 Id. 326; 130 Id. 585; Thompson on Neg § 3774. Labatt, Master & S., §§ 1041-2; 169 P. 1111. This error went throughout the case and was found in the instructions. The evidence is insufficient to show that if a proper lookout had been kept the operators of the train could have discovered the perilous position of the deceased. 129 Ark. 77 and cases cited. The rule in that case applies here, and has not been changed or modified by the Legislature or this court.

2. The evidence is full of contradictions, and the verdict is not sustained by the evidence. The burden was on plaintiff to show that the engineer was where a proper lookout would have discovered the danger. The verdict is against the preponderance of the evidence. 126 Ark. 427; 133 Id. 166; 136 Id. 45; 34 Id. 498.

3. The court erred in giving instruction No. 1 on the lookout statute. The facts did not warrant the reading of the statute. 116 Ark. 514; 213 S.W. 369, and further, deceased was a trespasser. 129 Ark. 77.

4. It was error to give instruction No. 4. 108 Ark. 326; 36 Id. 371.

5. The instruction on the measure of damages was erroneous. St. L., I. M. & S. Ry. Co. v. Yocum, 34 Ark. 493; 63 Miss. 509; 93 Id. 183.

6. It was error to give instruction No. 1. Cases supra.

7. Instruction No. 2 is in conflict with our lookout statute.

8. The court should have given the instruction, "If deceased was not struck by the engine the jury should find for defendant."

9. The verdict is excessive. 79 Ark. 179; 67 Id. 377.

10. There was error in admitting the statements of deceased. 61 Ark. 52.

11. It was error to admit the statements of the mother and other witnesses as to the pathway.

12. Evidence as to the expectancy of the life of the mother was inadmissible.

Rice & Rice and J. W. Nance, for appellee.

1. The verdict is sustained by the weight of the evidence and there is no error in the instructions. The cases cited by appellant do not sustain his contentions. 126 Ark. 435; Ib. 438. Courts have large discretion in the matter of granting new trials, and unless this discretion is abused the appellate court will not disturb the verdict. 98 Ark. 310.

The railroad was not sued, but the Director General Hines only. 216 S.W. 3.

It is wholly immaterial how the boy came to be on the track, and whether he stubbed his toe and fell with his forehead on the railing and lay there stunned or whether he voluntarily stepped upon the track and stood there. It is immaterial how he got there under the lookout statute and our decisions. 108 Ark. 326; 93 Id. 457.

2. There was no error in admitting as evidence the call of the boy for his mamma. 80 Ark. 258; 61 Id. 52.

3. There was no error in the instruction on the alarm statute. 53 Ark. 201. All the instructions were fair and stated the law as a whole. 93 Ark. 189.

4. There was proof of the value of the services of deceased, Charley Johnson, might render during his minority. 39 Ark. 491. Where one is injured by a train, the prima facie presumption arises that the railroad company was negligent. 103 Ark. 374; 80 Id. 19.

5. There was no error in reading the lookout statute to the jury, 116 Ark. 514, nor in the instruction as to the value of the services of the boy to the father or mother during expectancy of life of the boy or until his majority. 105 Ark. 347; 113 Id. 382. The verdict was not excessive, but, in view of the pain and suffering, very moderate.

OPINION

HUMPHREYS, J.

Appellee, Ethel Johnson, administratrix of the estate of Charles M. Johnson, deceased, in her representative capacity, instituted suit against appellant, Walker D. Hines, as Director General of the Kansas City Southern Railroad Company, in the Benton Circuit Court, to recover damages in the sum of $ 3,000, on account of the alleged negligent killing of Charles M. Johnson, a child seven years of age, in the operation of its freight train near the depot at Sulphur Springs in said county, on the 15th day of March, 1918. The negligence charged, and upon which the cause was sent to the jury, consisted in the failure of appellant's servants to keep a proper lookout and to ring the bell and sound the whistle for a road crossing north of the place where the injury occurred.

Appellant filed answer, denying negligence on the part of its servants in connection with the injury inflicted, which resulted in the death of the child.

The trial resulted in a verdict and judgment in favor of appellee for $ 1,500, from which judgment an appeal has been duly prosecuted to this court.

The child was injured by a freight train operated by the Director General of the Kansas City Southern Railway Company, on a trestle or bridge across a ravine, about one-half mile south of the depot at Sulphur Springs. The trestle was about 70 feet long, and there was a walkway three feet west of the west rail of the track. A hand rail was erected on the west side of the walkway. This walkway was built for employees of the railroad to walk across the trestle for the purpose of opening and closing a switch a short distance north of the trestle when trains were directed to take the side track. The road crossing over the railroad track is 200 yards north of the bridge. The railroad track south of the bridge is straight for a mile. The walkway is three feet wide. It was used by a number of people residing in Dickey Heights, an addition to Sulphur Springs, in going to and coming from town. It was not, however, a public passway. Appellee resided 200 yards west of the bridge in a house situated on higher ground than the railroad track. There was no obstruction between the house and the trestle. One standing on the back porch of the house had a plain view of the bridge. A short time before the injury occurred, the child, in company with an older brother and some neighboring children, without the knowledge of appellee, went down to the bridge for the purpose of watering stock in the stream spanned by the bridge. According to the evidence, in its most favorable light to appellee, this child wandered on the walkway of the bridge, and, in running toward the north, stubbed its toe on a nail near the east side of the walkway and fell in a northeasterly direction toward the track, across the west rail, and was held there by the nail, which had stuck in the heel of its shoe. Appellee and her daughter were standing on their back porch, and the older brother on the west, near the walkway on the bridge, and observed the child as it ran and fell, at which time the train was about 200 yards to the south of the bridge. The three testified that the train came on at a rapid speed, and, while the child was struggling to get up, the engine ran over and severed the child's left arm, near the shoulder, from its body, and, that, as the train passed on, it was struck in the back of the head by a box car. Appellee testified that when she reached the bridge, the child was crying "Oh, mamma! oh, mamma!; that it died within an hour. Appellant objected to the admission of the exclamation "Oh, mamma! oh, mamma!" and preserved the exception in its motion for new trial.

Appellant's testimony was to the effect that the train was being pulled by two engines, and, before reaching the south end of the bridge, stopped, where the first engine was detached and proceeded down the main track so that the second engine could take the train on to the side track just north of the bridge; that, as the train approached the bridge, the bell was ringing and whistle blowing for the road crossing north of the bridge, and that a lookout was being kept by the engineer and fireman; that the bridge was within the vision of the engineer and fireman 200 yards or more south of the bridge and that no child was on the bridge as the train approached; that the only physical evidence that the train struck the child was the fact that blood was on one of the box cars midway the train; that the engines did not run over the child and had no blood about them. They were corroborated in the main in their evidence by the neighboring children, in whose company Charles M. Johnson went to water the stock.

At the conclusion of the evidence, appellant requested that the court direct a verdict in its favor, the refusal of which is assigned as reversible error. The contention is made that the evidence, construed in its most favorable light to appellee failed to show that the engineer operating the train, by keeping a lookout, could have seen the boy on or so near the track as to be in a place of danger. Appellee and her daughter both testified that they could see the child plainly on the walkway while standing 200 yards to the west of the porch. The track was straight to the south, and there was no obstruction between the incoming train and the bridge. There was evidence tending to show that when the child was running along the...