Missouri Pacific Railroad Co. v. McKinney

• Decision Date: 16 April 1934
• Docket Number: 4-3423
• Citation: 71 S.W.2d 180,189 Ark. 69
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. MCKINNEY
• Court: Arkansas Supreme Court

71 S.W.2d 180

189 Ark. 69

MISSOURI PACIFIC RAILROAD COMPANY v. MCKINNEY

4-3423

Supreme Court of Arkansas

April 16, 1934

Appeal from White Circuit Court; W. D. Davenport, Judge; affirmed.

Judgment affirmed.

Thos B. Pryor and H. L. Ponder, for appellant.

Tom W Campbell, for appellee.

HUMPREYS J. Justices SMITH, MCHANEY and BUTLER dissent.

OPINION

HUMPREYS, J.

Appellee brought suit against appellant in the circuit court of White County to recover damages for the death of his son, Owen McKinney, who was struck by appellant's train through the alleged carelessness and negligence of its employees in operating same. The alleged negligence consisted in the failure of its employees to exercise ordinary care to protect appellee's son or to prevent injuring him while he was crossing appellant's track south of the town of Beebe, along a well-defined footpath crossing from the east to the west side thereof.

Appellant filed an answer specifically denying any negligence on its part in killing appellee's son, but alleging that the cause of his death was the result of the boy's own negligence.

The cause was submitted upon the pleadings, evidence introduced by each party, and the instructions of the court, which resulted in a verdict and consequent judgment against appellant in the sum of $ 3,000, from which is this appeal.

The railroad track runs north and south through the town of Beebe. About a quarter of a mile south of the depot, a well-defined footpath crosses the track in a diagonal direction from the northeast to the southwest. This footpath had been used by the public for many years in crossing from one side of the track to the other. It was not a road crossing at which the statute requires railroad companies to sound their whistle or ring their bell in approaching same. At this point, appellant maintained three tracks on a dump some ten or twelve feet high. The main tracks were about eight feet apart, one being two feet higher than the other, and the side track east of the other two some six feet lower than the main tracks.

The testimony introduced by appellee tended to show that appellee's son left home on the morning of July 29, 1932, to visit a boy who lived on the opposite side of the tracks; that, as he approached the dump or tracks, traveling in a southwest direction, an engine and tender running north was approaching the footpath appellee's son was walking in, and that it crossed the footpath just as his son reached the crest of the dump, and that, in passing around it onto the next track, a fast south-bound freight train, without giving any warning of its approach, struck the boy and cut off one leg and an arm, and broke the other leg in two places, from which injuries he died in about two hours; that the north-bound engine prevented him from seeing the south-bound train, and that the noise therefrom prevented him from hearing the south-bound freight as it approached; that the boy was struck and fatally injured while in the footpath.

The evidence introduced by appellant tended to show that appellee's son, in company with a companion, had decided to catch the south-bound freight for Little Rock and from there to go to an uncle who lived in the northwest; that, in an effort to catch the moving train, he caught hold of a box car some ten or twelve cars in the rear of the engine and was thrown under the train and injured, not in the footpath, but some considerable distance north of it; that the north-bound engine and tender had neared the depot before the south-bound freight reached the footpath, and that the trains did not meet at or near the footpath, and that same could not have prevented appellee's son from seeing the south-bound freight as it approached the footpath.

At the conclusion of the testimony, appellant requested an instructed verdict on the ground that the testimony was insufficient to show liability on its part. Of course, if the undisputed evidence showed that, after the engine passed appellee's son, he tried to board the fast-moving freight train and was...