Missouri Pacific Railroad Co. v. Maxwell
| Decision Date | 08 November 1937 |
| Docket Number | 4-4797 |
| Citation | 109 S.W.2d 1254,194 Ark. 938 |
| Parties | MISSOURI PACIFIC RAILROAD COMPANY, ET AL., v. MAXWELL |
| Court | Arkansas Supreme Court |
Appeal from Grant Circuit Court; H. B. Means, Judge; affirmed.
Judgment affirmed.
R. E Wiley and Richard M. Ryan, for appellants.
Glover & Glover, for appellee.
OPINION
Appellee, R. L. Maxwell, father of Charles Ray Maxwell, brought suit in the circuit court of Grant county against appellants to recover damages in the sum of $ 15,000 for himself and as administrator of the estate of his son, alleging that on April 16, 1935, through the negligent operation of one of the passenger trains of the Missouri Pacific Railroad Company his son, who was eighteen months of age, was run over and killed about 2:30 o'clock P. M., three-fourths of a mile south of Kirkland.
The specific negligence alleged was that the employees of said railroad company in operating the train failed to keep a lookout for persons on or dangerously near its tracks and that they failed to ring the bell, blow the whistle, or give any other sound of alarm until within a few feet of the child and ran over and killed him, resulting in suffering and death.
Appellants filed separate answers, denying any negligence in the operation of the train and pleading in bar of the action negligence on the part of R. L. Maxwell in allowing the child to go upon the track.
The cause was submitted to a jury on the pleadings, evidence adduced by the respective parties and instructions of the court, resulting in a judgment in favor of appellee for $ 5,000, from which is this appeal.
The facts, revealed by the record, stated in the most favorable light to appellee, are, in substance, as follows:
Appellee resided with his family about four hundred feet east of the track. His home was enclosed with a fence. There was a gate on the west side which fastened with a latch. There was a pathway leading by his home to and across the track to the highway on the west side of and parallel to said track, which pathway was used by the public. The track was straight and level from this private crossing north to Kirkland. There were no obstructions of any kind between the private crossing and Kirkland to prevent the engineer and fireman from seeing anyone on the track at or near the crossing. The day the child was killed by the railroad company was a clear and bright day. About ten minutes before the train ran over the child, it was watching its father build a fence in the back yard. Its mother came out and took it in the house, but it went out into the front yard and from there to the railroad track and had gone about twenty feet on the track toward Kirkland when it was caught by the train and dragged for about forty feet to the place it was supposed to have been killed. At that point, blood was discovered and when the child was picked up there was a hole in its head. After the train ran over and killed the child, it ran about five hundred to eight hundred feet before it stopped. The record does not reflect whether some part of the train struck the child on the head or whether at that point its head hit a tie. At that particular point a few ties were higher than the others. When picked up the child was dead. The train ran over the child before its parents discovered it had left the house and gone over to the railroad track. This was the first time it had gotten out of the yard and gone to the railroad track. Appellee was still working on the fence when informed that the train had run over the child. He thought it was still in the house with its mother.
According to the testimony of S. A. Jones, the engineer who was operating the train, the train was moving at a speed of about forty-five miles an hour and the engineer observed an object on the track one thousand or twelve hundred feet in front of the train and, thinking it was a piece of paper, the engineer paid little attention to it until within five hundred or six hundred feet of it, at which time he discovered it was a child and immediately applied the emergency brakes and blew short blasts of the whistle, but was unable to stop the train before running over the child. He stated that had he realized it was a child when he first observed the object he could have stopped the train and avoided killing it.
Several of the witnesses testified that when the engineer blew the short blasts of the whistle the train was right upon the child. One witness testified that he was plowing within three hundred feet of the child and that the engineer waived his hand at him and gave him what is called a "high-ball" in passing. An examination of the track indicated that the emergency brakes were first applied when the train was within about 75 feet of the child. One witness testified that her attention was attracted by the short blasts of the whistle and that just as she turned her head the train ran over the child. The testimony of the engineer taken in the federal court on motion to remand the cause to the state court was to the effect that when he discovered the object was the child he was six hundred or seven hundred feet from it. His testimony in the two courts conflicted in other material respects. The court admitted a picture of the child taken two or three months before its death in evidence over the objection of appellant.
Attorneys for the railroad company argue that the court erred in submitting to the jury the question of its liability on the lookout statute, contending that the undisputed evidence reflects that it kept an efficient lookout and discovered the child on the track as soon as it reasonably could under all the facts and circumstances, and that after discovering the child all was done that could have been reasonably done to avoid killing it. The lookout statute is as follows:
"It shall be the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person...
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