Kansas City Southern Railway Company v. Morris

• Decision Date: 19 November 1906
• Citation: 98 S.W. 363,80 Ark. 528
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. MORRIS
• Court: Arkansas Supreme Court

98 S.W. 363

80 Ark. 528

KANSAS CITY SOUTHERN RAILWAY COMPANY v. MORRIS

Supreme Court of Arkansas

November 19, 1906

Appeal from Benton Circuit Court; John N. Tillman, Judge; affirmed.

Judgment affirmed.

S. W Moore and Read & McDonough, for appellant.

1. The court erred in permitting the plaintiff to prove the expectancy of life of the deceased by the physician. Mortality tables are admissible, but personal knowledge and unauthenticated books are not. 63 Ark. 491; 81 Tex. 523; 20 Am. Eng. Enc. Law (2 Ed.), 884-5.

2. The admission of photographs is always allowed, when proved to be correct, for the purpose of enabling the witnesses to explain their testimony as to the facts, or to assist the jury in arriving at a better understanding of the testimony of the witnesses. 100 F. 756; 1 Whart. Ev. § 676; 1 Whart Crim. Ev. § 544; 16 Cal. 179; 11 Am. & Eng. Enc. Law (2 Ed.), 539. 22 Ib. 722-776; 105 F. 525; 71 Conn. 652; 16 N.Y 509; 73 Ark. 183.

3. It was error to admit as evidence the statements made by deceased as to how the accident happened. They were not a part of the res gestae and were inadmissible. His statement was not the undesigned incident of the act that caused the injury. 5 Ark. 397; 51 Ark. 509; 58 Ark. 168; 61 Ark. 52.

4. It was error to instruct the jury that the deceased had a right to cross and recross appellant's sidetrack if in his judgment it was necessary to do so in order to procure the shingle. It was not a side track, but a yard the deceased had to cross, There was no proof that it was necessary in the judgment of deceased to go there. Under the instruction, ordinary care on the part of deceased was limited to looking and listening. There was no duty on appellant to keep a lookout for persons on this side track. 145 U.S. 418; 3 Elliott, Railroads, § 1258.

E. P. Watson, for appellee.

1. Mortality tables are not the only evidence that is competent to prove the expectancy of life. 20 Am. & Eng. Enc. Law (2 Ed.), 887. The physician qualified himself as an expert and testified as such.

2. To permit the introduction of photographs is largely within the discretion of the trial court. A photograph when offered must be one of the location and situation at the very time of the accident. 7 Am. & Eng. Ry. Cas. (U.S.), 510; 152 Mo. 217; 75 Am. St. Rep. 462; 6 Am. & Eng. Ry. Cas. 168. A photograph is at best but secondary evidence, and the exercise of discretion by the court as to its admission is conclusive. 22 Am. & Eng. Enc. Law (2 Ed.), 776.

3. The statement of the deceased was clearly a part of res gestae, and was admissible. 78 Ark. 213; 58 Ark. 179; 51 Ark. 509; 21 Am. & Eng. Enc. Law (1 Ed.), 101-8; 48 Ark. 333; 43 Ark. 104.

4. Unless in the motion for new trial the errors in the instructions complained of are pointed out specifically, the objections will not be considered here. 79 Ark. 53; 74 Ark. 256; Ib. 298; 75 Ark. 577.

OPINION

BATTLE, J.

This was an action brought by R. S. Morris, as administrator of Jacob Webster, deceased, against the Kansas City Southern Railway Company to recover damages on account of the death of his intestate. He alleged in his complaint" that the defendant maintained, on the second day of May, 1904, on its line of railroad, at the city of Siloam Springs, in Benton County, in this State, a passenger and freight depot and a large switch yard and many side tracks of railroad, and had a foreman and laborers employed to work on said yard and side tracks. Mike Kelley was the foreman, and Jacob Webster was one of the laborers working under his orders and supervision. That while so employed it was the duty of Webster to go over and across the said tracks and switches. That on the morning of May 2, 1904, there was standing on the switch in said yards farthest west from the depot building two large furniture cars. That, while the engineer and conductor were switching on the track next to the depot building, Kelley directed Webster to get a small piece of timber to be used in raising the frog of the railroad track in the switch yards. That upon the west of the tracks, upon which the two cars were standing, was a lumber yard. That Webster passed behind the two cars on the south side to get a piece of lumber from the lumber yard which was near to the track on which the two cars were then standing. That at the time he passed in the rear of said cars, or to the south of them, the locomotive and train that was then being formed was on the track next to the depot and to the east of the track upon which the two cars were standing. And from where the two cars were standing, after Webster had gone to the west of them in the performance of his duties at the time as a section hand, he could not see the engine and train of cars on the track next to the depot and east of where he stood. That, after obtaining the piece of timber he was sent to get, he started to recross the track on which the two furniture cars were standing and to go to the place he was directed to take the timber to be used. That, in order to return to the place, he had to recross the track upon which the two cars were standing. That he had been on the west of the track after he crossed it to the lumber yard not exceeding two minutes. And when he crossed to the west side the two cars were standing, still disconnected as aforesaid. That in attempting to cross the track on which the two cars stood he crossed on the tracks south of the last car. That when he crossed to the west the locomotive and train that were then being made up headed north and were on the track next to the platform and depot, and to the west of the depot. That when Webster started to cross the track back to the direction from whence he came, he started to cross about twenty feet from the end of the south car on the track. That when about half way across the track the car next to him was driven with force and rapidity by the locomotive under the control of the engineer striking the same so as to drive the car against and over Webster, and to knock him down and mortally injure him, from which injuries then received he died in about three hours.

"The plaintiff states that at the time his intestate was struck and killed by the defendant's act he was in the discharge of his duty as a servant of the defendant.

"The plaintiff states that at the time the defendant's locomotive, operated by its engineer and under the direction of said engineer and the conductor in making up said train of cars, and which engine and train of cars was backed over the body of the deceased, was run and operated in the most careless and negligent manner. That without warning or signal given by the engineer he backed the engine under his control in such unskillful manner and with such rapidity in the switch yards as to force the two cars aforesaid together and drive them over one hundred feet from where they then stood. That, had the engineer and conductor done their duty as the servants of the defendant company, the cars would not have been driven over Webster, but, on account of their negligence and disregard of his rights as a servant of the company acting at the time under the orders of and direction of the company's section foreman in the yards of the company, he, Webster, lost his life without any act of carelessness or negligence on his part.

"The plaintiff states that the said Jacob R. Webster at the time of the striking and death as hereinbefore stated was a married man. That he left him surviving a wife, Mary R. Webster, who is of the age of 50 years. That he left him surviving the following named children: Oscar F. Webster, aged 19 years, Ida S. Webster, aged 17 years, Homer F. Webster aged 13 years, Earl H. Webster aged 10 years and Inatia Webster aged -- years. That at the time of his death Jacob R. Webster was 51 years of age. That at the time of his death he left an estate of about the value of $ 150. That he and his family were dependent upon his daily labor for a support. That without his support his family as hereinbefore named could not be fed, clothed and educated, and that his labor was their sole means of support."

He asked for judgment for $ 1,920 damages and all other proper relief.

The defendant specifically denied each allegation in the complaint, and pleaded contributory negligence of the deceased.

In a trial before a jury the plaintiff recovered a verdict for $ 1,500, and the defendant appealed.

H. H. Canfield, a physician, after testifying that Webster was struck by the cars of the defendant, and that the last time he saw him he was in a dying condition, testified that he was about fifty years old; that he (witness) was familiar with the tables of mortality, having been an examining physician for insurance companies for ten years; and that Webster's expectancy of life was between 19 and 20 years. The defendant moved to exclude this testimony because it was incompetent and not responsive to any allegation in the complaint, and the court overruled the motion.

Defendant offered to exhibit photographs of the scene of the accident in which Webster lost his life, as evidence, and the court refused to allow them to be so used; and it saved exceptions.

J. E Tincher testified that he was the first man to go to the relief of Webster after he was hurt; that Webster was lying with his limbs below his knees across the rail of the railroad track and his body was lying outside; that he pulled him off the track. While in this position, while lying near the track, F. Daniels went to his assistance. He (Daniels) testified that, four or five minutes after he (Webster) was hurt, he asked him, "Dad, what's the matter with you? How did this happen?" and that Webster replied, "I went to go across the track," and he said, "not knowing they were on this...