Russell v. St. Louis Southwestern Railway Company

• Decision Date: 08 June 1914
• Docket Number: 31
• Citation: 168 S.W. 135,113 Ark. 353
• Parties: RUSSELL v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

168 S.W. 135

113 Ark. 353

RUSSELL v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY

No. 31

Supreme Court of Arkansas

June 8, 1914

Appeal from Columbia Circuit Court; George W. Hays, Judge; affirmed.

STATEMENT BY THE COURT.

Appellant's intestate, S. Z. Kimball, was killed by a north-bound passenger train upon appellee's railroad, at the station of Waldo, at which place the railroad tracks run practically east and west, and the train which killed him was running east.

The last seen of deceased prior to his death was at the Skinner Hotel, about ten minutes before the arrival of the train. This hotel is situated about fifty feet north of the depot but to reach the depot from this hotel one must go west, on a sidewalk, for about 100 or 125 feet to the street which intersects the street running north and south and crosses the railroad tracks. Deceased was expecting to meet some parties on this train, as he stated to the proprietor of the hotel just before leaving there, and he walked west down this sidewalk to the street crossing the railroad tracks. There is a sidewalk on this street crossing the railroad tracks which leads to the store of a Mr. Ficklin on the opposite side of the railroad right-of-way. Just west of the point where this sidewalk crosses the right-of-way three tracks converge, and they diverge from that point across this street toward the depot until the tracks are from five to six feet apart. It is 360 feet from this street crossing to the depot, and deceased's hat was found forty feet east of the crossing leading from the Skinner Hotel to Ficklin's store; his body was found about 200 feet east of the depot, or 520 feet from the place where his hat was found. His papers were scattered from where his body was found back to within ten or fifteen feet of where his hat was found; his hat was of felt and was lying against the passing track eight feet from the main line track. His body was lying just about where the engine usually stopped and his head was cut off eight or ten feet west of where his body was found. There were indications that his body had been dragged, and the condition of the ground between the ties indicated that he had been dragged from about where the last papers were found sixty or seventy-five feet east of the west crossing to where his body was found. This crossing passes through a cut four and one-half to five feet deep and seventy feet wide, being thirty-five feet from the center of the main track each way. The right-of-way, both inside and outside of this cut, was perfectly open and unobstructed and the track was straight for a distance of three miles west of the depot.

All witnesses who testified as to the aspect of the track and right-of-way, including the fireman and engineer, say there was nothing to have prevented the discovery of the deceased if he had been on the track, or on the right-of-way. The evidence showed that deceased had no business at the Skinner Hotel and was there merely to pass away the time, and it was shown that he frequented Ficklin's store on the opposite side of the track. It was Sunday, and other business houses were closed, but he had found company at Ficklin's store before he went to the hotel, and it is appellant's theory that he left the hotel with the intention of going to this store, from which place he could see the train in time to get to the depot before its arrival. What happened thereafter until his body was found, no one knows; but appellant advances the theory and argues that the evidence supports the view, that as deceased approached the right-of-way he either saw the train headlight or heard it whistle and decided to go down the track to the depot; that it was night, and, in attempting to follow the diverging tracks from the crossing in going toward the depot, deceased mistook the line of the north track for the middle or main track, and, while he knew the train was approaching, he thought himself on the north track and out of danger.

But it must be admitted that this is a mere matter of conjecture.

The proof upon appellee's part is that deceased had recently lost his wife and had been left with the care and responsibility of a large family, in which there were several small children, and that he was in poor health and was apparently very despondent.

Appellant contends that there is some evidence to show that deceased was struck by the pilot of the engine and that his presence could have been discovered by the trainmen, had a lookout been kept, in time to have avoided the injury.

But the only circumstances to support this view are that the body of...