Missouri & North Arkansas Railroad Company v. Bratton

• Decision Date: 17 February 1908
• Citation: 108 S.W. 518,85 Ark. 326
• Parties: MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. BRATTON
• Court: Arkansas Supreme Court

108 S.W. 518

85 Ark. 326

MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. BRATTON

Supreme Court of Arkansas

February 17, 1908

Appeal from Searcy Circuit Court; Brice B. Hudgins, Judge; affirmed.

STATEMENT BY THE COURT.

This suit was brought by Benjamin Bratton, Jr., as administrator of the estate of Benj. Bratton, St., to recover of appellant damages for the alleged negligent killing of Benj. Bratton Sr., in operating its passenger train. The negligence alleged was the use of a boiler and engine that were "badly out of repair"; that the engineer and fireman failed to keep a proper lookout; that they failed to "sound a whistle ring a bell, or give any kind of alarm to passengers on the track of the approach of the locomotive." The complaint alleged that the appellant had "at all times allowed its passengers and the public generally to use its tracks, and road, in going to and from the town of Leslie to its depot." And set forth the manner of the injury as follows:

"That on the 6th day of November, 1905, Benjamin Bratton, the deceased, was a passenger on defendant's train, and that he, with another passenger, left the depot at Leslie, and started walking down the track, as was the custom, in the direction of the town of Leslie, being immediately behind the train until it backed off on a 'Y'; and then the deceased, with others, kept on down the track when the locomotive propelling said train immediately, and without keeping a proper lookout, and with a poor and insufficient headlight, and with a locomotive and engine badly out of repair, came back on the main line and followed on after him," knocking him down, and severely injuring him; that Bratton "suffered most excruciating pain, and died as a result of his injuries." Damages were laid at $ 25,000.

The answer of appellant admitted that Benjamin Bratton was killed by its train, but specifically denied each and all the allegations of negligence. The appellant admitted that its tracks were used by passengers, but denied that it consented to such use, and averred that there was ample room consisting of a public highway by the side of its tracks where passengers would be entirely out of danger from its trains. Appellant averred "that it was its invariable custom, when its train arrived at Leslie, to give passengers time to debark, then to move train down track toward Leslie, so as to back on to the 'Y', and, after cutting loose the cars from the engine and tender, then to move its engine and tender down to the water tank, there to take water as a daily custom; but defendant avers that it moved down slowly, not exceeding a rate of four miles per hour, during all of which time it was ringing the bell, the same being the usual, customary, and proper warning to persons on the track." Appellant denied that Bratton suffered great bodily pain, but averred that he was rendered unconscious by the shock, and died therefore without pain. Appellant then set up contributory negligence on the part of Bratton in "going upon the track at a time when he knew that the train was due to pass over it; and that he placed himself immediately in front of the engine, and so close thereto that it was impossible for the servants in charge of the train to discover his danger; and averred that the said servants did not discover the intestate in time to avoid the injury by the use of all the reasonable means within its power." Appellant therefore denied liability.

After the evidence, was adduced and the jury was instructed, it returned a verdict for appellee in the sum of $ 2,500. Appellant moved in arrest of judgment, alleging "that the facts set forth in the complaint do not constitute a cause of action."

Motion for new trial was overruled, and this appeal was duly prosecuted. Other facts stated in opinion.

Judgment affirmed.

Crump, Mitchell & Trimble, for appellant.

1. Taking into consideration the evidence, the nature of the wounds, the extreme old age of the deceased and the short time he lived after the injury, there could have been no conscious suffering. No man could have received such a shock and retained consciousness.

2. The 4th instruction was erroneous. It does not appear that there was a general custom on the part of persons going to and from defendant's, depot to use its tracks as a pathway, nor that it had existed for any length of time, nor that the public had been invited so to use the tracks. 46 Ark. 522; 76 Ark. II; 54 Ark. 431; 56 Ark. 271; Id. 457; 57 Ark 461; 57 F. 921. Appellant owed no special duty to the deceased on account of his age or feeble condition, unless the train operatives had seen him in time and had known his condition. Cases supra. Deceased was a trespasser on the right of way. 55 S.W. 921; 26 S.W. 414; 3 Elliott, Railroads, 1253; 66 Ark. 494.

3. In the light of the evidence, deceased was guilty of such contributory negligence as to preclude recovery. 64 Ark. 368; 3 Rapalje & Mack's Ry. Dig. 198. And the court erred in giving its instruction 2. 64 Ark. 364. There is no evidence on which to base it. The trainmen testified that they did keep a lookout and did not see deceased. Notwithstanding the presumption of negligence arising from the killing by the company's train on its track, there can be no recovery if the deceased was guilty of contributory negligence in being on the track, unless his situation was discovered by the trainmen in time to avoid injuring him. 69 Ark. 380. And the burden is on plaintiff to show that they did discover him in time to avoid the injury. 77 Ark. 401. See, also, 76 Ark. 10; 92 Ala. 270; 36 Ark. 46; 61 Ark. 549; 65 Ark. 235; 69 Ark. 134; Id. 617; 52 Ark. 120; Elliott on Railroads, § 1166.

Ulysses Bratton and H. H. Myers, for appellee.

1. Where all the evidence is not brought up in the record, this court will presume that the verdict was correct, and that the evidence was sufficient to sustain the verdict. 75 Ark, 571; 67 Ark. 287; 64 Ark. 609; 63 Ark. 513; 67 Ark. 464; 72 Ark. 185; 74 Ark. 88; 57 Ark. 459; 45 Ark. 240; 43 Ark. 451; 11 Ark. 125.

2. The killing of deceased by appellant being admitted, the presumption of negligence on its part arose, and the burden was upon it to overcome that presumption. 69 Ark, 380; 65 Ark. 238; 57 Ark. 141; 80 Ark. 19. The finding of the jury will not be disturbed where there is any evidence to support it, nor where the verdict is based upon conflicting evidence. 57 Ark. 577; 84 Ark. 241; 14 Ark. 21; 23 Ark. 131; Id. 159; 11 Ark. 630; 46 Ark, 149; 7 Ark, 470; 31 Ark. 163; 58 Ark. 139; 67 Ark. 399; 67 Ark. 537; Id. 433; 65 Ark. 120; Id. 255; 76 Ark. 326; 23 Ark. 208; Id. 32.

3. If the circumstances of a particular case are such that an ordinarily prudent person might not have expected a train to pass at the time, it is a question for the jury to say whether he was guilty of contributory negligence. 79 Ark. 138; 20 S.W. 490; Id. 163; 26 S.W. 20; 88 Am. Dec. 353; 18 L. R. A. 60; 9 L. R. A. 521; 101 N.Y. 419; 140 N.Y. 639; 147 Mass, 495; 116 Mass. 540; 4 Am. St. Rep. 364; 105 Ind. 406; 66 F. 502; 63 Wis. 152; 77 Wis. 349; 72 Wis. 523; 56 Mich. 1; 105 Ind. 404; 26 S.W. 20; 89 Hun, 596; 84 Me. 117; 132 Mass. 269; 68 Miss. 566.

4. The act of the company's employes in backing the train on the "Y" threw deceased off his guard, and was responsible for his walking on down the track; hence he was not, under the circumstances, guilty of contributory negligence. 78 Ark. 61; Elliott on Railroads, 11711; 2 Wood on Railroads, 1546; 59 F. 237; 49 F. 814; 154 Mass. 189; L. R. 7 Eng. & Irish App. 12; 138 Ind. 600; 30 Minn. 482.

5. A judgment will not be reversed for refusal to give an instruction asked where substantially the same instruction has been given. 52 Ark. 181; 34 Ark. 651; 51 Ark. 147; 46 Ark. 152; 28 Ark. 9; 6 Pet. 622; 9 Pet. 418; 43 Ark. 185; 78 Ark. 58; 67 Ark. 531. The objection to the second instruction is not well taken. If appellant's employees discovered deceased on the tracks in time, by the use of ordinary care and skill, to avoid the injury and failed to do so, appellee was entitled to recover. There is no similarity between this case and the Taylor case, 64 Ark. 364. There was evidence on which to base the instruction, and it was for the jury to reconcile the testimony or to say to whom they would give credit. 23 Ark. 159; 74 Ark. 407; 48 Ark. 106; 46 Ark. 513.

6. As to whether or not deceased was conscious after the injury, and suffered pain, was a question for the jury under the evidence, and their verdict on that point is conclusive. Moreover, the evidence is abundant to show conscious suffering. 59 Ark. 215; 84 Ark. 241.

7. It was also for the jury to say from the evidence whether the custom of the traveling public was such as to license the public in the use of the tracks and to make the deceased a licensee. 94 F. 323; Thompson, Neg. 1725, 1562, 1691. Where a railroad has for a long time permitted the public to travel along its tracks and right of way without objection, it thereby licenses the public to do so, and is bound to anticipate such use, and to exercise ordinary care to prevent injury. 23 Am. & Eng. Enc. of L. 742; Thompson, Neg. § § 1725, 1726 and notes; 18 S.W. 2; 7 S.W. 874; 58 Am. Rep. 514; 57 Am. Rep. 446; 62 Ark. 253; Id. 240; 36 Ark. 374; 61 Ark. 621; 29 S.W. 234; 54 S.W. 1056; 74 F. 359; Id. 286.

OPINION

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

Appellant assigns as error in its motion for new trial the giving of instructions numbered two, four and six, on the court's own motion. But there were no exceptions saved to the giving of these instructions, and we cannot therefore consider these assignments of error.

Among other requests for instructions asked by appellant and refused by the court was the following:

"You are instructed that when the deceased, Ben

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