Memphis, Dallas & Gulf Railroad Company v. Thompson

• Decision Date: 17 March 1919
• Docket Number: 150
• Citation: Memphis, Dallas & Gulf Railroad Company v. Thompson, 138 Ark. 175, 210 S. W. 346 (Ark. 1919)
• Parties: MEMPHIS, DALLAS & GULF RAILROAD COMPANY v. THOMPSON
• Court: Arkansas Supreme Court

210 S.W. 346

138 Ark. 175

MEMPHIS, DALLAS & GULF RAILROAD COMPANY v. THOMPSON

No. 150

Supreme Court of Arkansas

March 17, 1919

Appeal from Garland Circuit Court; Scott Wood, Judge; reversed as to judgment for benefit of estate of decedent; affirmed as to judgment for benefit of next of kin.

Judgment affirmed in part and reversed in part and action appellee dismissed.

J. W Bishop, for appellant.

1. Appellee was not entitled to recover anything because of contributory negligence of the deceased. Neither he nor his driver stopped, looked nor listened for the train at the crossing, nor exercised care or diligence to discover a train where the track was plainly in view and open and unobstructed. Such negligence precludes a recovery. 10 N.E 128; 5 N.Y.S. 574; 54 Ark. 431; 56 Id. 459; 59 Id. 129; 61 Id. 559; 62 Id. 158 250; 65 Id. 239; 76 Id. 14, 225; 78 Id. 359; 81 Id. 326; 82 Id. 444; 92 Id. 443; 94 Id. 529; 99 Id. 170; 100 Id. 533.

Where a person injured has been guilty of contributory negligence the liability of defendant arises only from a failure to use ordinary care after the discovery of the perilous position. 86 Ark. 306; 87 Id. 628; 89 Id. 496; 92 Id. 437; 96 Id. 438; 101 Id. 322; 69 Id. 135; 92 Id. 443; 97 Id. 442; 117 Id. 457; 99 Id. 171; 103 Id. 378; 115 Id. 529; Ib. 101; 105 Id. 294; 125 Id. 440; 121 Id. 351. See also 111 Ark. 137; 115 Id. 48; Kirby & Castle's Digest, § 8131.

2. The testimony for plaintiff was not sufficient to warrant the verdicts returned, even if defendant had been present making a defense and it was not and had no opportunity to rebut the presumption of the prima facie case made. However, in the motion to vacate, it is shown that the engineer blew the whistle and stock alarm, applied brakes, rang the bell, etc.; that the wheels skidded, as the rails were wet and slippery. It is shown that all due precautions were taken to prevent an accident or injury.

3. The verdicts after the remittitur are still excessive and not warranted by the evidence. There was no evidence as to pain and suffering, as deceased was unconscious from the time he was struck until death. A verdict should have been directed for defendant. Cases supra. The judgment should be reversed and the cause dismissed.

4. The $ 1,500 judgment after the remittitur is still excessive, as under the proof there should have been no recovery at all. Supra.

Calvin T. Cotham and Houston Emory, for appellee.

1. The transcript is imperfect and incomplete and this case should be affirmed as a delay case.

2. No contributory negligence was shown on part of deceased. It is shown that Mahan, the driver, used and exercised due care. The cases cited by appellant are not in point. 10 N.E. 128; 5 N.Y.S. 574, is a strong case for appellee.

3. The questions of negligence and contributory negligence are always for the jury unless the facts are undisputed and here the questions have been settled by the verdicts. 97 Ark. 347. The evidence abundantly sustains the verdicts. The verdicts are not excessive. On the whole case the judgment should be affirmed. 61 Ark. 549; 97 Id. 347; 101 Id. 424.

OPINION

HUMPHREYS, J.

On January 15, 1918, appellee, as administrator, for the benefit of both the estate and next of kin of Braden Thompson, deceased, instituted suit against appellant in the Garland Circuit Court, to recover damages on account of the killing of Braden Thompson on January 1, 1918, at a point where appellant's railroad crossed a public road in Garland County, near the Gardner ferry or bridge. It was alleged in the complaint that appellant's employees wrongfully, carelessly and negligently ran its passenger train across said public road crossing at an unusual speed and failed to ring the bell or sound the whistle or to give any other warning of its approach, and failed to keep a constant lookout for persons about to cross the track at the public crossing; that appellee's intestate was bruised, mangled and mutilated as a result of the injuries received from the train when it struck him, and died within a few minutes in great pain and mental anguish; that, at the time his intestate was killed by the train, he was 22 years of age, and was appellee's main dependence for labor on his farm; that, on account of the wrongful killing of his intestate, he was damaged, as father and next of kin, in the sum of $ 5,000, and that the estate of his intestate was damaged in the sum of $ 15,000.

Appellant filed answer denying all material allegations in the complaint and alleged, as a further defense, that at the time of the injury, appellee was seated in a wagon drawn by a pair of mules and driven by Alexander Mahan; that they suddenly drove upon the track, immediately in front of the approaching train, without looking and listening, and without using the means at their command to ascertain the approach of the train.

On the 12th day of June, 1918, the cause was submitted to a jury upon the pleadings, appellee's evidence and instructions of the court. The jury returned a verdict in favor of W. G. Thompson, administrator, for the benefit of next of kin, in the sum of $ 5,000, and a verdict in favor of W. G. Thompson, as administrator, for the benefit of the estate, in the sum of $ 5,000. Upon the same day, judgment was rendered in accordance with the verdicts. Appellant was not present at the trial, but appeared on June 14th and requested and was granted until June 22nd to file a motion to set aside the judgment and for a new trial. On that date, appellant filed its motion setting up, first, that it was not present at the trial and not represented by counsel, for the reason that it was led to believe that the cause would not be tried until after the primary election; that it had a meritorious defense to the cause of action, setting it out; and that the evidence was insufficient to support the verdict and judgment. Thereafter, appellee filed a response to the motion denying all material allegations therein. On the 13th day of July, 1918, the motion was submitted to the court upon affidavits and testimony. The court declined to vacate the judgment and grant defendant a new trial upon remittitur by appellee of his judgment as administrator, for the benefit of the estate, to the sum of $ 300, and his judgment as administrator, for the benefit of the next of kin, to the sum of $ 1,200, and modified the original judgment to conform to the amounts as thus reduced. From the final judgment, under proper proceedings, an appeal has been prosecuted to this court.

We deem it unnecessary to set out even a summary of the evidence introduced by appellant in support of the motion to vacate, and by appellee in support of his response thereto, for the reason that appellant does not now contend in his argument and brief that the court erred in refusing to vacate the judgment. It is contended, however, by appellant that the undisputed evidence disclosed, first, that the death of appellee's intestate was not caused by the negligence of the appellant's employees; second, that the death of appellee's intestate was caused by his own negligence; and, third, that the judgment was excessive, even after the remittitur.

The evidence tended to show that appellant's train was behind time; that it approached the crossing, where the fatal accident happened, at a high rate of speed; that the employees failed to sound the whistle or ring the bell; that the train came around the curve onto the crossing from behind a hill; that it struck the wagon broadside, in which Braden Thompson was riding, and carried his body about 100 feet west and deposited it a few inches to the north of the track where it was found badly...