Saint Louis, Iron Mountain & Southern Railway Company v. Cleere

• Decision Date: 22 July 1905
• Citation: 88 S.W. 995,76 Ark. 377
• Parties: SAINT LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. CLEERE
• Court: Arkansas Supreme Court

88 S.W. 995

76 Ark. 377

SAINT LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. CLEERE

Supreme Court of Arkansas

July 22, 1905

Appeal from Hot Spring Circuit Court ALEXANDER M. DUFFIE, Judge.

Affirmed.

STATEMENT BY THE COURT.

This action was brought by the widow and administratrix of the estate of Arthur Tomlinson, deceased, against the St. Louis Iron Mountain & Southern Railway Company, to recover damages for his death. The case has been here on a former appeal, and the facts are fully stated in the former opinion. St Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489.

After the case was remanded, a change of venue was taken to Hot Spring County, where a trial was had which resulted in a verdict and judgment in favor of the plaintiff for $ 20,000 damages.

Before the trial the defendant filed a plea in abatement, as an amendment to its answer, setting forth the intermarriage of the plaintiff with one Martin J. Cleere since the commencement of the action. The plaintiff responded admitting such intermarriage, and asked that the cause proceed in her name, Regina Tomlinson Cleere as administratrix, and that her husband be joined with her in the suit. She asked that she, in her own interest as widow and Arthur T. Tomlinson, the infant son and only heir at law of said decedent as the next of kin, be also made parties plaintiff. These requests of the plaintiff were granted by the court, and the cause proceeded accordingly. The final judgment of the court awarding damages was rendered only in favor of the administratrix.

Judgment affirmed.

B. S. Johnson, for appellant.

The plea in abatement should have been sustained. 69 Ark. 489; Sand. & H. Dig. § 5912; 32 Ark. 91; 35 Ark. 511. The verdict should have been for appellant. 69 Ark. 498; 62 Ark. 245; 95 U.S. 697; 49 Ark. 134; 61 Ark. 549; 130 F. 72; 16 S.W. 909; 55 Ark. 459; Patt. Ry. Law, § 177; 54 Ark. 431; 73 Ind. 163; 62 N.E. 455; 23 Oh. Cir. Ct. 130; 201 Pa. 124; 96 Me. 207; 64 N.E. 130; 121 F. 678. Under the facts in the case, appellant was not liable. 154 Mass. 403; 155 Mass. 44; 165 Mass. 264; 156 Mass. 180; 158 Mass. 10; 4 L. R. A. 632; 74 F. 299; 44 S.W. 703; 57 F. 826; 73 F. 627; 61 Ark. 555; 150 U.S. 248; 12 Am. & Eng. R. Cas. 460. The first instruction given was abstract and misleading. 16 Ala. 53; 5 Ark. 651; 18 Ark. 527; 15 Ark. 492; 37 Ark. 593; 51 Ark. 88; 55 Ark. 259; 68 Ark. 106; 65 Ark. 98; 37 Ark. 333; 30 Ark. 383. The third instruction was error. 14 Ark. 295, 537, 543; 34 Ark. 702; 45 Ark. 263; 37 Ark. 333; 30 Ark. 383; 57 Ark. 512; 62 Ark. 286. The sixth instruction undertakes to pass upon a question of fact. 37 Ark. 581; 37 Ark. 239; 49 Ark. 439; Const. Ark., art 7, § 23; 49 Ark. 148; 34 Ark. 696; 45 Ark. 166, 492; 123 F. 52. The instruction upon the re-marriage of plaintiff was error. 13 App. Cas. 800; 4 Best & S. 403; 44 L. J. Exch. 39; 15 Ont. App. 477. Where a disputed fact is shown not to exist by undisputed evidence, that fact should be taken from the jury. 51 Ark. 140; 57 Ark. 461; 52 Ark. 406. The tenth instruction requested by appellant should have been given. 54 Ark. 431; 64 Ark. 365; 62 Ark. 156, 263; 61 Ark. 549; 95 U.S. 161; 114 U.S. 615. Instructions Nos. 11, 12 and 14, requested by defendant, should have been given. 56 Ark. 460; 143 Ind. 405; 3 Elliott, Railroads, 1771, 1167; 41 N.Y. 296; 128 Ind. 143; 25 Mich. 274; 105 Mass. 77, 203; 39 N.Y. 358; 160 Pa.St. 117; 56 Minn. 274; 26 Ark. 17; 5 Ark. 558; 7 Ark. 542; 10 Ark. 186. The verdict is excessive. 57 Ark. 384; 12 S.E. 512; 18 W.Va. 1; 11 Wis. 415; 43 Kas. 309; 37 Kas. 567; 38 N.Y. 178; 68 Tex. 617; 7 S.W. 492; 5 Minn. 376; 17 Grant. 366; 12 Pick. 191; 40 Cal. 73; 13 Texas, 594; 66 Ill. 71; 49 S.W. 868; 38 Ib. 401; 46 Mo.App. 638; 70 Ga. 120; 91 Ga. 820; 49 Kas. 78; 37 Kas. 578; 44 Kas. 410; 49 P. 436; 46 Mo. 310; 75 N.W. 272; 39 Ark. 511.

Ashley Cockrill and Murphy & Mehaffy, for appellee.

The questions settled by the former appeal cannot be considered in this one. 55 Ark. 614; 56 Ark. 170; 3 Cyc. 396; 36 N.Y. 339. The motion to abate the suit was properly overruled, 7 La. 595; 59 Ind. 344; 43 Mass. 31; 44 Ark. 202; 49 Ark. 277; 63 Ark. 510; 70 Ark. 74; 11 Am. & Eng. Enc. Law, 681, 814; 1 Wm. Exrs. 233; 41 S.C. 374; 3 Bush, 505; 16 Kas. 568; 1 Disn. 592; Cros. Ex. & Admr. 102; Sand. & H. Dig. § 37; 32 Ark. 332; 1 Redf. 217; 89 N.Y. 401; 2 N.Y.S. 634; 84 N.Y. 48. The husband, widow and son were properly joined as parties. 54 Ark. 528; 30 Ark. 401; 35 Ark. 303; 10 Enc. Pl. & Pr. 222; 7 Tex. 582; Kirby's Dig. § 5999; 68 Ark. 555; 43 Ark. 41; 44 Pa.St. 179; 112 Pa.St. 511; 71 Ark. 258; 77 S.W. 890; Kirby's Dig. § 6002; 93 F. 260; 52 F. 371; 68 Tex. 664; 76 S.W. 589; 28 Ohio St. 191; 36 L. R. A. 812. The court's instruction upon the remarriage of the widow was proper. 45 Oh. St. 470; Suth. Dam. § 158; 70, Tex. 582; 57 Ga. 277; 34 A. 856; 27 W.Va. 32; 91 N.W. 358; 66 N.E. 696; 69 N.E. 620. The instructions as to the hood worn by deceased were correct. 74 Ill.App. 387; 36 S.W. 319; 79 Wis. 404; 115 Mass. 190. Instructions Nos. 11 and 12 requested by defendant were properly refused. 56 Ark. 457; 64 Ark. 332; 54 Ark. 159; 48 Ark. 366; 12 Am. & Eng. R. Cas. 418. The verdict was not excessive. 15 Ark. 345; 21 So. 507; Sand. & H. Dig. § 912; Suth. Dam. § 455; 52 F. 371; 724, 87; 64 Tex. 485; 75 Tex. 157; 60 Ark. 550; 34 S.W. 229; 27 W.Va. 32; 42 P. 822; 66 Me. 572; 29 N.Y. 286; 2 Biss. 282; 58 Ark. 454, 60 Ark. 560; 50 P. 508; 44 N.Y.S. 820; 52 F. 714, 87; 34 S.W. 133; 75 Tex. 61; 178 N.Y. 623; 87 N.Y.S. 617; 80 S.W. 852; 176 N.Y. 607; 174 N.Y. 512; 176 N.Y. 607; 65 S.W. 217.

MCCULLOCH J. HILL, C. J., not participating.

OPINION

MCCULLOCH, J., (after stating the facts.)

1. The initial question presented for our consideration is, should the action have been abated on account of the remarriage of the administratrix? In passing upon that point we waive the question whether, conceding that the remarriage of the administritrix ipso facto revoked her letters and left no administration pending, the widow and heir at law could properly be made parties plaintiff, and the cause be allowed to proceed in their names. This was done, and the cause proceeded in their names as well as in the name of the administritrix, though the final judgment was rendered in favor of the administratrix.

The statute provides that "every such action shall be brought by and in the name of the personal representative of such deceased person; and if there be no personal representative, then the same may be brought by the heirs at law of such deceased person." Kirby's Digest, § 6290.

But we uphold the ruling of the court upon a different ground from that of the right of the widow and heirs to be substituted as parties plaintiff. The plaintiff derived her powers from letters of administration issued to her from the proper court exercising probate jurisdiction in the State of New York, where the descendent lived and claimed his citizenship at the time of his death, and where the plaintiff also resided. A foreign executor or administrator is permitted by the statute of this State to sue here. Kirby's Dig. § 6003. Under the laws of that State, which must control us in determining the question, and of which we take judicial knowledge (Act April 11, 1901, Kirby's Digest, § 7823,) married women are legally capable of acting as administratrices, and, that being true, it necessarily follows that the marriage of an administratrix did not revoke her letters. The course of legislation in that State on the subject is reviewed in the case of Re Benj. Curser Estate, 89 N.Y. 401. See also Hamilton v. Levy, 41 S.C. 374, 19 S.E. 610; Moss v. Rowland, 66 Ky. 505, 3 Bush 505; Kansas Pacific Railway Co. v. Cutter, 16 Kan. 568.

No error was committed in refusing to sustain the plea in abatement.

2. Numerous errors are assigned in the giving of instructions asked by plaintiff, and in refusing to give certain instructions, and modifying others asked by the defendant.

Nine separate instructions were given at the request of the plaintiff, and fifteen at the request of the defendant, some of which were modified. All of them need not be copied here, but only such as we deem it important to discuss.

Instruction number three given at plaintiff's request is as follows:

"3. If you find from a preponderance of the evidence that the defendant railway backed one of its engines over a track between the coaches and the platform, without a guard or lookout, or, not having such a guard or lookout, without signal or warning which, under the circumstances, would reasonably attract the attention of a man of ordinary care and prudence who was rightfully engaged in passing between the coaches and the station platform, the railway was guilty of negligence, and you should so find."

Error is alleged in that the word "guard" is used in the instruction, although the statute only requires a lookout to be kept; and that the instruction assumes the existence of the fact that plaintiff's intestate was rightfully upon the track.

We do not think that the instruction is open to either of the objections named. The court was there telling the jury what would constitute negligence on the part of the railway company. It is true that the statute only requires that a lookout be kept, but the court in effect said that if either a guard or lookout was kept, or if, in the absence of such guard or lookout, such signals or warnings were given as would, under the circumstances, reasonably attract the attention of a man of ordinary care and prudence rightfully engaged in passing between the coaches and station, then the company was guilty of no negligence. An instruction on that subject which omitted the word "guard" would have been erroneous and prejudicial to appellant's...