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 |
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: 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:
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...
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