Miles v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 17 May 1909
• Citation: 119 S.W. 837,90 Ark. 485
• Parties: MILES v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

119 S.W. 837

90 Ark. 485

MILES v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

May 17, 1909

Appeal from Hot Spring Circuit Court; William H. Evans, Judge reversed.

STATEMENT BY THE COURT.

This was a suit by Tom M. Miles, as administrator of the estate of Mary Ellen Miles, to recover for damages alleged to be due the estate on account of the alleged negligent killing of Mary Ellen Miles by the appellee. It is alleged: "That the said Mary Ellen 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 Ellen Miles up on said platform, and before the said Mary Ellen 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 Ellen 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 ten o'clock A. M. on the 24th day of August, 1907, until about one 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 Ellen Miles was in a position of danger."

Damages for the estate were laid in the sum of five thousand dollars for which judgment was asked.

The answer of appellant denied all the material allegations except the killing, and set up contributory negligence on the part of the mother of Mary Ellen 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, Arkansas, and that on the 24th day of August, 1908, about ten o'clock A. M., Elvira Miles was at Smackover, Arkansas, a regular station on the St. Louis Iron Mountain & Southern Railway Company, with their child Mary Ellen Miles, who was three and a half years of age, for the purpose of boarding the local freight train of the said St. Louis, Iron Mountain & Southern Railway Company as a passenger to go to Perla, Arkansas, and after said train came up to the station and stopped where passengers usually get on and off of said train, the said Elvira Miles started to board said train with her child, and 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 as she started to get on, and while she had hold of one of the handholds with one hand and her 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 one 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 anaesthetics, 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 Ellen 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 Ellen 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 the 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 Ellen 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 can not 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.

Judgment reversed and cause remanded.

Jabez M. Smith, for appellant.

If the administrator had recovered, the proceeds would still have had to pass through the regular course of administration under the jurisdiction of the probate court before he could have been determined to be a distributee. 47 Ark. 225; 38 Ark. 261. It was not within the jurisdiction of the circuit court to determine whether or not the father was a distributee of the estate. That was a question solely within the jurisdiction of the probate court. 47 Ark. 225; 38 Ark. 261; Kirby's Dig. §§ 110 and 160. Contributory negligence is a matter of defense and must be pleaded. 77 Ark. 10. The question as to whether the mother was guilty of contributory negligence should have been left to the jury. 112 S.W. 222; 113 S.W. 200. When more than one inference can be fairly drawn from the facts as to the care or want of care of the plaintiff, the question of contributory negligence is for the jury, 67 Ark. 531; 111 S.W. 264; 46 Ark. 437. When a train is started while a passenger is attempting to alight, and he is injured, a prima facie case of negligence is made out against the company. Kirby's Dig. § 6773; 83 Ark. 221; 113 S.W. 645; 81 Ark. 275; 73 Ark. 552; 63 Ark. 636. Defendant must prove contributory negligence. 48 Ark. 475; 46 Ark. 436; Id. 193. The most important duty incumbent upon carriers is to provide for the safety of their passengers. 55 Ark. 254; 60 Ark. 556; 82 Ark. 504. And this rule applies even though the passenger is on a freight train. 112 S.W. 222.

E. B. Kinsworthy, Lewis Rhoton, and Bridges, Wooldridge & Gantt, for appellee.

Where the husband and wife are both interested in the result of a controversy, and the adverse party sues or defends in a representative capacity, the wife is incompetent as a witness for the husband if she would be incompetent in her own behalf. 132 Ill. 392. If the husband sues as next friend for the sole benefit of some other person, the wife is a competent witness. 59 Ark. 180. But here plaintiff and his wife are the real parties in interest. Contributory negligence of the parent may be pleaded, even though he sues in a representative capacity. Thompson on Neg. § 3077; Beach, Contributory Neg. § 44; Tiffany, Death by Wrongful Act, § 69; 92 Pa.St. 450; 37 Am. Rep. 705; 94 Mo. 600; 36 Ark. 41; 95...