Sibley v. Ratliffe

• Decision Date: 02 June 1888
• Citation: 8 S.W. 686
• Parties: SIBLEY <I>v.</I> RATLIFFE.
• Court: Arkansas Supreme Court

8 S.W. 686

SIBLEYv.

RATLIFFE.

Supreme Court of Arkansas.

June 2, 1888.

Appeal from the circuit court, Lonoke county; F. T. VAUGHN, Judge.

U. M. & G. B. Rose, for appellant. John C. & C. W. England, for appellee.

COCKRILL, C. J.

The appellee, Ratliffe, was injured by an engine of the Memphis & Little Rock Railway. He was a minor at the time; and, after obtaining permission of the court which appointed Sibley receiver of the company, brought suit, by his next friend, to recover damages for the injury. There was a trial and verdict for the plaintiff, which the court set aside. Afterwards the defendant moved to dismiss the action because it had not been instituted at the instance of the minor's father, mother, or guardian. Ratliffe, having reached his majority in the mean time, asked and obtained leave to prosecute the action in his own name, and the motion to dismiss was thereupon denied. A second trial resulted in a verdict for the plaintiff for $1,500. The court refused to disturb it. Judgment was entered accordingly. The defendant took his bill of exceptions and appealed.

1. It is urged that the court erred in refusing to dismiss the action. The statute directing by whom suit may be brought for an injury, not resulting in death, done to a person by a railroad train in this state, is as follows: "When any person shall be wounded by a railroad train running in this state, he may sue for damages in his own name; or, if he be a minor, his father, if living, may sue; and, if the father be dead, then the mother may sue; and, if both father and mother be dead, then the guardian of such minor may sue for and recover such damages as the court or jury trying the case may assess." Mansf. Dig. § 5539. Statutes substantially like this are in force in many of the states, and the construction placed upon them by the courts is that, in case of an injury to a minor child, two causes of action arise: one in favor of the infant for his personal injuries, and one in favor of the parent for losses suffered by him or her. Durkee v. Railroad Co., 56 Cal. 388. See authorities collected in note to Iron Co. v. Rupp, 7 Amer. & Eng. R. Cas. 30; Shear. & R. Neg. § 608. As a right of action accrued to the minor by reason of the injury, it was not error to permit him to prosecute the suit in his own name, after reaching his majority, to recover such damages as he was entitled to. Smith v. Smithson, 48 Ark. 261, 3 S. W. Rep. 49.

2. It is argued that the evidence is not sufficient to sustain the verdict, and that the court misdirected the jury, and refused to charge as requested. The plaintiff had started to walk over the defendant's railway track from Madison to Lonoke. On the second day of his journey, he was struck by a passing engine, and permanently injured. The jury were required by the court to find the facts specially in response to the following questions: "(1) What was Ratliffe doing when he was struck by the engine? (2) How far was the engine from Ratliffe when the engineer first saw him?" To the first query they responded as follows: "We, the jury, believe the plaintiff was, at the time he was struck, sitting on the side of the track asleep." And to the second, that "he was at least 200 yards from the engine when seen by the engineer." Upon both propositions the evidence was conflicting. As the jury is the final arbiter or trier of the facts, we pass by the evidence which contradicts the verdict, and look only to that which tends to sustain it. If, out of the conflicting mass, we find enough to justify the verdict, we decline to interfere, in accordance with a long-settled practice, regardless of the preponderance of the evidence. It is not contended that there is no evidence to support the first special finding of the jury. It is said there is none to sustain the second special finding, or the general verdict. The engineer testified that he did not see the plaintiff until he was within 50 or 60 feet of him; that he was lying on the ground near the rail, and so obscured as to render it impossible to see him earlier; that he recognized the object as a man the instant he saw it; and that he put on the brakes, reversed the engine, "stopped as soon as he could, and blew the whistle." Upon cross-examination it was developed that this witness had testified, on the former trial of the cause, that he discovered the plaintiff about 100 yards ahead of the engine; and that, in his deposition which was taken at another time, he placed the distance at 75 yards, and said that he had sounded the alarm to warn the plaintiff of his danger. Bush, who was a United States mail agent on the train, testified that he was standing in the door of the mail car just before the accident, ready to throw the mail-sack off at the next station; and, as he looked ahead, he saw the plaintiff on the track, or ends of the cross-ties, several hundred yards ahead of the train; that he turned to Rowland, who was in the car with him, and told him of the circumstances; and that Rowland went to the car door in time to...