Railway Co. v. Roberts

• Decision Date: 18 June 1892
• Citation: 19 S.W. 1055,56 Ark. 387
• Parties: RAILWAY COMPANY v. ROBERTS
• Court: Arkansas Supreme Court

19 S.W. 1055

56 Ark. 387

RAILWAY COMPANY v. ROBERTS

Supreme Court of Arkansas

June 18, 1892

APPEAL from Clay Circuit Court, Western District, J. E. RIDDICK Judge.

This was a suit of W. J. Roberts, as administrator, for the benefit of the estate of Daniel Roberts, who was alleged to have been killed by the negligence of defendant's trainmen.

Briefly the facts were as follows: On October 4, 1888, Roberts and Lewis started from the town of Corning, going north. They were driving a two-mule team. For some 600 yards the public road ran sixty-five or seventy feet west of defendant's track and parallel with it. Then it crossed the track. After deceased and his companion had driven about 200 yards north a north bound train, going twenty-five or thirty miles an hour, came in sight. As it approached, the team became frightened and began to run. There was evidence from which the jury might have inferred that the mules were frightened by escape of steam; that, although the trainmen saw the team was frightened, they continued to blow their whistle and to permit the steam to escape from the time the mules took fright until the accident occurred, and that no effort was made to check the speed of the train. The driver lost all control of the mules; they ran on until they reached the crossing, when they turned and attempted to cross the track just in front of the approaching engine. The wagon crossed with slight injury, but Roberts was jolted out on the track. As he fell upon the ground, he was instantly struck by the pilot beam of the engine and was so badly injured that he died immediately. There was testimony that the crossing was defective; also that a wagon could have been driven over it safely at an ordinary rate of speed.

The defendant requested the court to instruct the jury as follows: "6. If the jury find from the evidence that the engineer of defendant's train was, at the time of the accident, on the lookout and saw the deceased just before and as he started across the track, and immediately used every effort in his power and control to check his train, but failed because of the nearness of his engine to the deceased the court instructs you that there was no negligence on the part of the defendant, and you will find for the defendant."

The court modified the instruction asked by adding: "Unless you find that the accident and injury was directly caused by the engineer negligently blowing off steam or by the negligence of defendant in not keeping the crossing in repair."

The jury returned a verdict for plaintiff in the sum of $ 1,000.

Judgment reversed.

Dodge & Johnson for appellant.

1. Neither the frightening of the team nor the defective track was the proximate cause of the accident, but running the engine over him after the deceased fell upon the track, which could not be avoided, 139 U.S. 237; 10 Wall. 176; 20 Pa.St. 171; 13 Gray, 481; 115 Mass. 304; 30 Iowa 176.

2. The railroad cannot be held responsible for sounding its whistle in accordance with law. Mansf. Dig. sec. 5478; 53 Ark. 203; 16 A. 235; 114 Mass. 351. See also 14 S.W. 1067; 12 id. 953; 46 Ark. 523; 69 Me. 208; 98 N.C. 247.

3. The court erred in its charge to the jury. 16 S.W. 169; 49 Ark. 264.

4. Also in refusing to declare the law as asked by defendant. 125 Mass. 91; ib. 93; 52 Tex. 587; 18 Iowa 280, 380; 36 Iowa 462.

F. G. Taylor for appellee.

1. The proximate cause of the injury was the combined effect of negligently frightening the team, a defective crossing and negligence in running over deceased. 53 Ark. 201; 9 S.W. 577. The team was frightened by escaping steam, which is negligence. Wood, Railway Law, sec. 324.

2. If the defective condition of the crossing caused the accident, the railroad company is liable. 52 Ark. 368.

3. The verdict is amply sustained by the evidence, and there was no prejudicial error in the instructions.

OPINION

MANSFIELD, J.

Whether the injury complained of resulted from negligence on the part of the defendant was, under the circumstances of the case, a question for the jury. The evidence is sufficient to sustain their finding, and the damages recovered do not appear to us to be excessive. Penn. R. Co. v. Barnett, 59 Pa. 259; Phila. &c. R. Co. v. Killips, 88 Pa. 405; Railway v. Hall, 53 Ark. 7.

The court's second, third, eleventh and thirteenth instructions were correct; and we discover no objection to the twelfth that is not merely formal. The fourth and...