Memphis, D. & G. Ry. Co. v. Buckley

• Decision Date: 12 June 1911
• Parties: MEMPHIS, D. & G. RY. CO. v. BUCKLEY.
• Court: Arkansas Supreme Court

138 S.W. 965

MEMPHIS, D. & G. RY. CO. v. BUCKLEY.

Supreme Court of Arkansas.

June 12, 1911.

Appeal from Circuit Court, Hempstead County; Jacob M. Carter, Judge.

Action by Mrs. Alice Buckley, administratrix, against the Memphis, Dallas & Gulf Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This suit was brought by the appellee, as administratrix of the estate of Charles L. Buckley, deceased, for the benefit of the estate, and also for the benefit of herself as the next of kin. The negligence alleged was that Charles L. Buckley was walking upon appellant's track; that one of appellant's trains was following him; that the employés, after discovering his perilous situation, "negligently and carelessly struck, ran over, and killed him." The answer denied the allegation of negligence and set up the defense of contributory negligence. The jury returned a verdict in favor of appellee for $2,500, judgment was rendered for the same, and this appeal was taken.

Sain & Sain, for appellant. Hamby, Haynie & Hamby, for appellee.

WOOD, J. (after stating the facts as above).

Appellee's expectancy was 26 years. The deceased was 20 years of age; lived with appellee, who was his mother. He was deaf, but otherwise unafflicted. He was the eldest of those living with his mother. He knew how to farm, and his mother depended upon him, as the other boys were younger and smaller. He helped to make the crops, and when through with that work would hire out. His wages would sometimes be from $1.50 to $2 per day, and he would bring his money home and spend it for his own clothing and for the benefit of the family. He told his mother that he never expected to marry, but was going to remain with her. He was shown to have been industrious, one of the witnesses (a farmer) testifying that he never had a better boy to work for him, that he was a good hand, and that whenever there was any business to look after for his (decedent's) mother that the decedent attended to it for her. The jury were warranted, from this evidence, in returning a verdict in favor of appellee in her own right in the sum of $2,500. Under the circumstances, it is reasonably certain that had decedent lived, and had his mother, the appellee, lived to the full term of her expectancy she would have realized more than the sum of $2,500 out of the contributions of her son. The decedent had an affection for his mother and expressed the determination to remain with her. He was a good worker and, doubtless, his earning capacity would have increased with experience of the years as they advanced, and therefore we are of the opinion that the judgment for the above sum is not excessive. Railway Co. v. Davis, 55 Ark. 462, 18 S. W. 628; Railway Co. v. Leverett, 48 Ark. 333, 3 S. W. 50, 3 Am. St. Rep. 230.

On behalf of appellee, the evidence tended to show that the engineer in charge of the engine discovered the decedent walking on the track something near 1,700 feet ahead of the engine; that the engineer sounded the whistle and continued to sound the same; but that decedent did not look around and gave no indications that he knew that the train was following him, and, notwithstanding this fact, the engineer made no effort to stop the train or to slacken its speed until it was too late to avoid the injury; that, when the engineer did finally put on the air and shut off the steam, it was impossible to stop the train until it had struck the decedent; that the train was something like 150 feet in length, consisting of the engine and tender, or tank, and two coaches; that the train was stopped that morning after the air was put on in something like 5½ or 6...