Missouri Pac. R. Co. v. Merrell

• Citation: 143 S.W.2d 51
• Decision Date: 24 June 1940
• Docket Number: No. 4-6006.,4-6006.
• Parties: MISSOURI PAC. R. CO. et al. v. MERRELL.
• Court: Supreme Court of Arkansas

143 S.W.2d 51

MISSOURI PAC. R. CO. et al. v. MERRELL.

No. 4-6006.

Supreme Court of Arkansas.

June 24, 1940.

Rehearing Denied September 30, 1940.

Appeal from Circuit Court, Ouachita County, Second Division; Gus W. Jones, Judge.

Action by Alfred Merrell against the Missouri Pacific Railroad Company, Guy A. Thompson, trustee, and others, for personal injuries sustained by plaintiff when a train ran over plaintiff's hand. From a judgment for plaintiff against Guy A. Thompson, trustee, for $17,500, the Missouri Pacific Railroad Company, Guy A. Thompson, trustee, appeals.

Reversed, and cause dismissed.

Henry Donham and E. W. Moorhead, both of Little Rock, for appellant.

L. B. Smead, of Camden, and Tom W. Campbell, of Little Rock, for appellee.

McHANEY, Justice.

Appellee brought this action against appellants and the engineer and fireman on freight train No. 60 to recover damages for personal injuries sustained by him when said train ran over his left hand early in the morning of January 16, 1939, at a point just northeast of railroad station in Judsonia, White county, Arkansas. He alleged in his complaint that the train was being operated without a headlight until it was almost on him, when the light was suddenly switched on, which blinded him, and, in an attempt to get out of the way of the train, he slipped or stumbled and fell with his left hand on the track, and before he could remove same it was run over. It was also alleged that the railroad is double tracked and the train was running on the northbound track; that he lived about two miles northeast of Judsonia; that there was no direct road from his home to town; that it was customary for him and others living in his vicinity to walk along the railroad to town; that he was working at the box factory and was on his way to work when he was injured at about 5:45 a. m. on said date. Failure of the operatives to keep a lookout was also alleged as negligence. The answer consisted of a general denial and a plea that appellee was a trespasser, and that his injuries were due to his own negligence.

Appellants and the engineer and fireman requested directed verdicts in their favor at the conclusion of the evidence for appellee, at the conclusion of all the evidence and in instruction No. 1, all of which were refused. Trial resulted in a verdict and judgment in favor of the operatives, but against Thompson, trustee, for $17,500.

Only two assignments of error are argued for a reversal of this judgment, one that it is not supported by the evidence and the other that it is excessive. It will be unnecessary to discuss the latter, as we agree with appellants that there is no substantial evidence to support the verdict and judgment.

The fact is that appellee was either a trespasser or a licensee on the track of appellants. His own counsel concedes that he was a licensee. It can make no difference which, as appellants owed him no more duty as a licensee than they did as a trespasser, which was not to injure him willfully or wantonly after discovering his peril or if his peril could have been discovered "in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril". The lookout statute, section 11144 of Pope's Digest, requires all persons running trains to keep a constant lookout for persons and property on the track, and if any person or property is killed or injured by neglect to keep such lookout, the railroad company shall be liable to the person injured "for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time", etc., as above quoted.

It is earnestly argued for appellee that the evidence was sufficient to take the case to the jury on the question of the violation of this statute, because he testified the headlight on the locomotive was not operating until it got within about twenty-five feet of him, when it either came on automatically or was switched on, and that, since he said it was very dark at the time, it was impossible for the engineer and fireman to keep a lookout in the absence of the headlight. Assuming that the headlight was not burning temporarily, although both operatives testified it was working and in good order, and that they were keeping a constant lookout, still no case was made for the jury because he knew the train was coming from the south to the north, meeting him, and he knew it in ample time to have gotten entirely out of the way and off both tracks. He says he did not know which track it was on, whether the north or the southbound track and that the headlight would have enabled him to know which track the train was on. This testimony cannot be accepted as substantial or as trustworthy. He had been walking these tracks long enough to know and must have known just as every one else knows that northbound trains run on the...