Miles v. St. Louis, I. M. & S. R. Co.

• Decision Date: 17 May 1909
• Citation: 119 S.W. 837
• Parties: MILES v. ST. LOUIS, I. M. & S. R. CO.
• Court: Arkansas Supreme Court

119 S.W. 837

MILES v. ST. LOUIS, I. M. & S. R. CO.

Supreme Court of Arkansas.

May 17, 1909.

Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge.

Action by Tom M. Miles, administrator, against the St. Louis, Iron Mountain & Southern Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, and remanded for new trial.

This was a suit by Tom M. Miles, as administrator of the estate of Mary Ellin Miles, to recover for damages alleged to be due the estate on account of the alleged negligent killing of Mary Ellin Miles by the appellee. It was alleged: "That the said Mary Ellin Miles was boarding said train as a passenger with her mother, and that she was lifted up on the platform of the caboose by her mother, and just after she was lifted up on the platform her mother turned around to pick up her grip, which she had set down so she could lift the said Mary Ellin Miles up on said platform, and before the said Mary Ellin Miles got in the caboose, and before her mother had time to get up on said platform, the defendant company negligently and carelessly shoved said train backwards, and caused the said Mary Ellin Miles to fall down on the track between said cars, and after she fell down on said track the defendant company negligently and carelessly pushed a car against and over her, causing her to receive injuries from which she suffered from 10 o'clock a. m. on the 24th day of August, 1907, until about 1 o'clock p. m. the next day, when she died of such injuries. That the injuries were caused by the failure of the defendant to keep a constant lookout while operating its train, and by the negligence and carelessness of the agents and servants of defendant in not handling the train properly, and in moving said train when it knew, or by the exercise of due care could have known, that Mary Ellin Miles was in a position of danger." Damages for the estate were laid in the sum of $5,000, for which judgment was asked.

The answer of appellee denied all the material allegations, except the killing, and set up contributory negligence on the part of the mother of Mary Ellin Miles. The evidence on behalf of appellant tended to show the following facts: That Elvira Miles was the wife of Tom M. Miles, and that they resided at Perla, Ark., and that on the 24th day of August, 1908, about 10 o'clock a. m., Elvira Miles was at Smackover, Ark., a regular station on the St. Louis, Iron Mountain & Southern Railroad Company, with their child, Mary Ellin Miles, who was 3½ years of age, for the purpose of boarding the local freight train of the said St. Louis, Iron Mountain & Southern Railroad Company as a passenger to go to Perla, Ark., and, after said train came up to the station and stopped where passengers usually get on and off of said train, that the said Elvira Miles started to board said train with her child, and that she set her basket down and lifted the child up on the front platform of the caboose, and then stooped down and picked up her basket and started to get on herself, and that as she started to get on, and while she had hold of one of the handholds with one hand and one foot on the bottom step of the platform, and before the child got inside of the caboose, the train shoved back with a sudden jerk and threw the child down on the track between the cars, and caused it to be run over by the wheels of the car in front of the caboose, which crushed one leg and one thumb; that the child was taken from under the cars and carried to a doctor's office, where the leg was amputated and the thumb dressed, and, after this, was carried to a house near by, where it was kept until the next day about 1 o'clock p. m., at which time it died from the effects of the injuries received; that it was conscious all the time after it was injured, except when it was under the influence of anæsthetics while it was being operated on; that the train was still when she started to get on, and, as she was in the act of getting on, one of the brakemen gave a signal to back up; and that the train did back in the manner stated and caused the injuries alleged. There was evidence tending to prove that all the passengers had not debarked, and one of them had started to get off, but had not reached the door, when the little girl fell. The appellant offered to prove by Elvira Miles, the wife of Tom Miles, the plaintiff, that Mary Ellin Miles was injured and killed as alleged in the complaint, but the court refused to allow Elvira Miles to testify on the ground that she was not a competent witness. The appellee adduced evidence tending to prove that it was not negligent in operating its train on the occasion when Mary Ellin Miles was injured.

The appellant asked several instructions. The court refused to grant all the prayers as asked, but modified some of them and gave them in the modified form, over appellant's objection. Other prayers for instructions by appellant were granted. The court, over the objection of appellant, refused the following prayer for instruction: "(3) The court instructs the jury that a child of tender years cannot be guilty of negligence, nor can the negligence of the parent be imputed to the child, and that if you believe from the evidence that the agents and servants of the defendant company could have seen, by the exercise of reasonable care and diligence, that the said Mary Ellin Miles was in a position of danger at the time they backed said train, and that said agents and servants of the defendant failed to exercise reasonable care and diligence to see her position, it will be your duty to find for the plaintiff." The court, over the objection of appellant, gave the following prayers for instructions presented by appellee: "(2) You are instructed that attempting to board a moving train or a freight train before it comes to an absolute stop is contributory negligence and bars a recovery, and if you find from the evidence in this case that the local freight train ran up to Smackover and made the usual stop, and that the deceased's mother put her on the platform, and that the slack of the train caused her to fall under the wheels and get injured and killed, your verdict must be for the defendant. (3) You are instructed that freight trains, both in starting and stopping, necessarily jerk more than passenger trains, and you are further instructed that this jerking is not negligence, and, if it caused the injury, there is no liability, and you cannot find against the company. (4) If you find from the evidence in this case that, when the local train ran up to Smackover, and the child's mother, before there was any instructions for passengers to get aboard, set the little three year old child on the platform, and in doing so she failed to use ordinary care and caution, and the jerk of the train threw her down and injured and killed her, the defendant is not liable, and your verdict must be for the defendant. * * * (6) If you find from the evidence in this case that the defendant's agents and servants did what men of ordinary care and prudence would have done situated as they were, they were not guilty of negligence, although the child may have been injured as alleged in plaintiff's complaint, and defendant company would not be liable because it can only be liable if the proof shows it was guilty of negligence."

The verdict was in favor of appellee. A motion for new trial, assigning as errors the various rulings to which exceptions were had, was overruled. Judgment was entered for appellee, which this appeal seeks to reverse.

Jabez M. Smith, for appellant. E. B. Kinsworthy, Lewis Rhaton, and Bridges, Wooldridge & Gantt, for appellee.

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

First. The court refused to allow the wife of the appellant to testify on the express ground that she was not a competent witness. The question therefore as to whether her testimony, if allowed, would have been material and prejudicial, is not presented. "Where a witness is rejected on the ground of incompetency, it must be presumed that the witness would have been rejected no matter how material the evidence might have been." Rickerstricker v. State, 31 Ark. 208. Moreover, if, as the record shows, her testimony would have tended to prove...