Missouri Pacific Railroad Co., v. Ross, Administrator

• Decision Date: 25 October 1937
• Docket Number: 4-4760
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, ET AL., v. ROSS, ADMINISTRATOR
• Court: Arkansas Supreme Court

109 S.W.2d 1246

194 Ark. 877

MISSOURI PACIFIC RAILROAD COMPANY, ET AL., v. ROSS, ADMINISTRATOR

4-4760

Supreme Court of Arkansas

October 25, 1937

Appeal from Hot Spring Circuit Court; Henry B. Means, Judge reversed.

Judgment reversed and cause dismissed.

R. E Wiley and Richard M. Ryan, for appellants.

F. D Goza and Ed F. McDonald, Jr., for appellee.

GRIFFIN SMITH, C. J. HUMPHREYS and MEHAFFY, JJ., dissent.

OPINION

GRIFFIN SMITH, C. J.

Appellee, as administrator of the estate of his son, Odis Ross, brought this suit in the Hot Spring Circuit Court, alleging that his intestate was killed because of the negligence of appellant.

The principal question involved is whether there was any substantial evidence to sustain the jury's verdict.

Odis Ross was last seen alive on the night of December 19, 1935. His dead body was found at eight o'clock the following morning. It was on the main line of appellant's railroad about two miles south of Donaldson, near Victor's Spur. When the body was found it was lying at the end of the ties parallel with the rails. The track was straight for a long distance in each direction and the roadbed was upon a dump six or eight feet high. There were no signs of footprints near the scene to indicate that Ross had climbed upon the track. It was customary for pedestrians to travel on a dirt road as far south as Victor's Spur, then get on the railroad. Appellant's right-of-way is fenced, and the wagon road is on the outside of the fence. There was a crossing at Victor's Spur, but it was closed with a gate.

The night of December 19-20 was cold, and the ground was frozen on the morning of the 20th. Blood, apparently penetrating the ground to a depth of three or four inches, was found by the body near the end of a crosstie. There was a hole in deceased's head, and an arm was broken. No blood was found other than that near the end of the crosstie, and there was no indication that the body had been dragged.

There is testimony that just before dark on December 19 Ross was at the home of Tom Brown half a mile north of Victor's Spur, and left, saying he was going to Jasper Collins' home, five miles away, near the railroad. He was seen on the dirt road about halfway between Brown's and Victor's Spur. Witnesses who met Ross said that he stepped out of the road to let them pass, as a normal person would have done. There was testimony that, prior to leaving Brown's house, Ross had been drinking.

Appellant's testimony was that a lookout had been maintained as to all trains passing Victors' Spur between five o'clock of the afternoon of December 19 and eight o'clock of the morning of the 20th, and that the headlights on these trains gave proper illumination.

Engineer Bryant testified that he passed Victor's Spur at 5:45 on the evening of December 19. About halfway between Donaldson and Victor's Spur he saw a man run across the track 300 feet ahead of the engine. Witness looked out of the cab and watched the man cross, then looked down on the right side of the engine and saw a man standing in the ditch near the track. This man had a stick in his hand. Witness did not ring the bell or blow the whistle, because it was not necessary. The testimony of Fireman Kelley was substantially the same as that given by Bryant.

Appellee, for affirmance of the case, relies upon Missouri Pacific Rd. Co. v. Grady, 188 Ark. 302, 65 S.W.2d 539, and Porter v. Scullen, et al., 129 Ark. 77, 195 S.W. 17.

In the Porter case it was alleged that "Plaintiff's intestate was walking upon the tracks of the defendant railway company * * * and while thus engaged the defendant company through its agents, servants and employees, negligently and carelessly and without keeping a proper lookout for people upon its said track or right-of-way, ran the train over its said track without ringing its bell or blowing the whistle of the engine, and ran over and so badly injured and wounded the said intestate that he lived only a short time after being struck by the train."

The answer was a denial of negligence. There was a trial before a jury. Trainmen were not called as witnesses. After the evidence was introduced the court directed a verdict in favor of the defendant. The only question considered on appeal was whether the evidence was legally sufficient to warrant a submission to the jury.

It is true, as appellee says in his brief, that in the opinion there is a finding that "The evidence with respect to the situation of the body and the condition it was in warrants the conclusion that the man was struck by the train and killed." This is true in the instant case, although the circumstances are not as strong here as they were in the Porter case. But Chief Justice MCCULLOCH, in his opinion affirming the Porter judgment, said: "We are of the opinion that the evidence was insufficient to make out a case against defendants, and that the court was correct in giving a peremptory instruction. It devolved upon the plaintiff, in order to make out a case, to show that if the proper lookout had been kept the presence of the deceased in a perilous position on or near the track could have been discovered in time to prevent the killing * * *. The testimony adduced fails to show that the presence of Porter could have been discovered if a lookout had been kept. It fails to show Porter's situation and attitude at the time he was struck by the train."

The opinion is authority for the rule, often announced by this court, that while testimony of an eyewitness is not necessary to prove that a person or property was struck by a train, and circumstantial evidence may establish the fact, yet the finding of an injured body or damaged property in circumstances justifying a belief that such injury or damage was caused by a train, is not sufficient, alone, to fix liability. There must be evidence that if a proper lookout had been kept "The presence of the deceased in a perilous position on or near the track could have been discovered in time to prevent the killing. "

In the Grady case the opinion contains an express finding that "All the circumstances indicated that the man who was killed was struck while walking on the track."

A very clear and concise discussion of the lookout statute is found in Russell v. St. Louis S.W. Ry Co., 113 Ark. 353, 168 S.W. 135. After citing St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S.W. 510; Burch v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 396, 158 S.W. 139; Chicago, R. I. & P. Ry. Co. v. Gunn, 112 Ark. 401, 166 S.W. 568; and Chicago, R. I. &...