Memphis, Dallas & Gulf Railroad Co. v. Buckley

• Decision Date: 12 June 1911
• Citation: 138 S.W. 965,99 Ark. 422
• Parties: MEMPHIS, DALLAS & GULF RAILROAD COMPANY v. BUCKLEY
• Court: Arkansas Supreme Court

138 S.W. 965

99 Ark. 422

MEMPHIS, DALLAS & GULF RAILROAD COMPANY v. BUCKLEY

Supreme Court of Arkansas

June 12, 1911

Appeal from Hempstead Circuit Court; Jacob M. Carter, Chancellor affirmed.

STATEMENT BY THE COURT.

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, and that one of appellant's trains was following him; that the employees 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.

Affirmed.

Sain & Sain, for appellant.

1. Decedent being a trespasser, appellant owed him no duty other than to exercise ordinary care not to injury him after his perilous position was discovered. 81 Ark. 371; 62 Ark. 164; 74 Ark. 610; 63 Ark. 366. His contributory negligence being shown, the burden was upon appellee to show that appellant's employees in charge of the engine wantonly wilfully and recklessly failed to exercise proper care and diligence to avoid injuring him. 69 Ark. 383; 76 Ark. 10; 77 Ark. 401; 47 Ark. 502; 36 Ark. 41; Id. 371; 45 Ark 246; 49 Ark. 257. Where, as in this case, the testimony of the engineer in charge of the engine was consistent, reasonable and not contradicted, the presumption of negligence on the part of the defendant was thereby overcome, and the jury were not authorized arbitrarily to reject such testimony. 89 Ark. 120; 82 Ark. 270. Before appellant could be held liable, it being shown that deceased was deaf, knowledge of his infirmity must be brought home to those in charge of the engine. 13 Am. & Eng. Rd. Cases 623; 91 Ky. 651; 25 S.W. 754; 7 Am. & Eng. Rd. Cases, 191; 71 Mo. 476. A greater degree of care rests upon one who is afflicted, as by deafness, in crossing or walking upon a railroad track, than upon one whose senses are not impaired. 75 Tex. 583.

2. There is no testimony to show wilful or wanton injury; and unless this is shown by the proof on the part of the plaintiff, or it can be fairly deduced from the proof on the part of the defendant, plaintiff cannot recover.

3. Deceased was guilty of gross contributory negligence in that he was walking upon the track of appellant where he had no right to walk. 49 Ark. 257; 69 Ark. 380.

4. The statutory presumption of negligence does not arise where the allegations of the complaint are that the deceased was killed after his perilous condition was discovered by defendant's employees, and recovery of damages is sought on this ground alone; and there is no presumption of wanton or wilful injury, but the burden of proof is upon the plaintiff to establish that fact by competent testimony. 47 Ark. 502; 36 Ark. 41; Id. 371; 45 Ark. 246; 46 Ark. 513; 24 Pa. 469; 71 Ill. 500.

Hamby & Haynie, for appellee.

The pleadings present a case of discovered peril, and it was tried solely on that question. The question of contributory negligence, as we understand it, was not an issue.

The right to presume that one will seek a place of safety fails when the situation or conduct of the party in peril indicates that he is unconscious of his danger, or where, for any other reason, it is obvious that he is not likely to extricate himself. If persons in charge of a train are in doubt as to the condition or situation of a person on the track, it is their duty to resolve all reasonable doubts in favor of saving life. 109 N.C. 430; 14 L. R. A. 749; 92 Va. 354; 36 S.E. 773; 93 Ala. 209; 9 So. 468; 80 N.W. 682; 39 W.Va. 50; 19 S.E. 567; 2 Shear. & Redf. Neg., (5 ed.) § 483; 4 Tex. Civ. App. 121; 23 S.W. 433. Greater care is required of a railroad company in all cases where it is apparent that the one in peril is not apprised of the danger. 60 Ala. 621; 109 N.C. 430. The last moment to which the presumption may be indulged that a person imperiled will escape to a place of safety is the last moment in which it would or ought to seem practicable to stop the train before collision. 109 N.C. 430; 77 Wis. 228; 46 N.W. 115; 42 Neb. 577; 60 N.W. 899; 63 Ill.App. 562; 164 Ill. 560; 46 Ark. 513; 50 Ark. 477; 46 Tex. 473; 3 S.W. 705. As applied to cases where such disability is not previously known, the "last moment" to which the presumption can be indulged is when, from all the circumstances, there is such an indication of bodily infirmity, or of disabled condition, or of imminent peril, that to a person of ordinary prudence the infliction of injury seems probable, if a proper effort is not made to avoid it. Shear. & Redf., Neg., 4th ed., § 99; 64 Miss. 784; 2 So. 171; 78 Hun 601; 29 N.Y.S. 490; 56 Cal. 513; 38 Am. Rep. 67; 92 Va. 354; 23 S.E. 733; 5 Sneed (Tenn.) 524; 73 Am. Dec. 149; 58 S.W. 255; 55 N.Y.S. 962.

OPINION

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

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 a dollar and a half to two dollars 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 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, should his mother, the appellee, live 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; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333, 3 S.W. 50.

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 1700 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 5 1/2 or 6 rail lengths, or a distance of...