Porter v. Scullin
| Decision Date | 07 May 1917 |
| Docket Number | 353 |
| Citation | 195 S.W. 17,129 Ark. 77 |
| Parties | PORTER v. SCULLIN et al., RECEIVERS MISSOURI & NORTH ARKANSAS RAILROAD COMPANY |
| Court | Arkansas Supreme Court |
Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.
Judgment affirmed.
Brundidge & Neelly, for appellant.
1. The testimony made a prima facie case of injury from negligence and the burden was on the company to show that the lookout statute was complied with. The company was clearly liable. 107 Ark. 441. The case 113 Ark. 353 is not in point. The physical facts make out a prima facie case.
It was error to direct a verdict. The case should have been submitted to the jury.
W. B Smith, J. Merrick Moore and H. M. Trieber, for appellee.
1. The court properly directed a verdict. Deceased was a trespasser and the burden was on plaintiff to show that the employees discovered his perilous position in time to avoid the injury and negligently failed to do so. 107 Ark. 431-8; 97 Id. 560; 96 Id. 370; 110 Id. 519; 113 Id. 353; 117 Id. 483. There is no proof of the circumstances of the injury. Under the lookout statute the proof was not sufficient. 101 Ark. 535.
This is an action instituted by the administratrix, for the benefit of the estate and next of kin of the decedent, to recover damages on account of his death, which is alleged to have been caused by the negligence of the servants of the defendants in operating a train. It is alleged in the complaint that Tom Porter, plaintiff's intestate, "was walking upon the tracks of the defendant railway company about one mile west of the town of Heber, Cleburne County, and that 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 said engine, and ran over and so badly injured and wounded the said Tom Porter that he only lived a short time after being struck by said train."
The answer of defendants contained a denial of the charge of negligence. There was a trial of the cause before a jury, but after the evidence was introduced the court directed the jury to return a verdict in favor of defendants, which was done, and judgment was rendered accordingly.
The only question for our consideration on this appeal is therefore, whether or not the evidence adduced was legally sufficient to warrant a submission of the issues to the jury. The evidence was sufficient to show, as alleged in the complaint, that Porter was struck and killed by defendant's train about three-quarters of a mile west of Heber. No one saw him at the time he was struck by the train--the trainmen were not called as witnesses in the case--but the dead body was found near the track immediately after the train passed. The body, when found, was lying parallel with the track about eight inches from the end of the ties, lying on the right side with the back toward the ties and the legs slightly drawn up. The man was dressed in a dark blue coat and trousers. The skull was crushed, which apparently had been caused by a knock against a hard, blunt substance, and the throat was lacerated. A physician who examined the body testified that the condition of the crushed skull indicated that the blow was not inflicted by a club or other instrument wielded by a man. 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. The last man who saw Porter was a witness named Johnson, who testified that he saw Porter about a half hour before the train passed, and that he was last seen within about 300 yards of where the body was found. Johnson testified that Porter was very much intoxicated, was lying on the side of the dump and was vomiting, but finally got up and went staggering down the track. The witness testified that he followed Porter for some distance until the latter got across a bridge, as he was afraid a train might come and strike him, but when Porter came to a road crossing he supposed he would turn off up the road and would get home safely. Porter was living with his father about two miles from Heber, and was doubtless trying to make his way home, traveling along the railroad track at the time he was killed. According to the undisputed evidence, he was grossly intoxicated at the time and unable to take care of himself. The dead body was discovered by Mr. Carswell, the mayor of Heber, who was living on his farm a short distance from the town, and traveled along the railroad to get home. The killing...
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