Sibley v. Ratliffe

• Decision Date: 02 June 1888
• Citation: 8 S.W. 686,50 Ark. 477
• Parties: SIBLEY v. RATLIFFE
• Court: Arkansas Supreme Court

8 S.W. 686

50 Ark. 477

SIBLEY v. RATLIFFE

Supreme Court of Arkansas

June 2, 1888

APPEAL from Lonoke Circuit Court, F. T. VAUGHAN, Judge.

Affirm.

U. M. & G. B. Rose, for appellant.

1. A railroad company owes no duty to trespassers further than not to run them down wilfully; and its servants have a right to presume that a trespasser will leave the track in time to escape injury. It is not the duty of employees to keep a watch for trespassers, their only duty was, after seeing him in time to prevent the injury, not to wilfully and negligently injure him. 36 Ark. 41; Ib., 371; 45 Id., 249; 46 Id., 513; 47 Id., 497; 49 Id., 257.

In view of the settled law of this state, the court erred in refusing the instructions asked, and the finding of the jury, was not supported by any evidence.

2. The court erred in refusing to dismiss the suit as improperly brought. The right to sue was in Ratliffe's mother. Mansf. Dig., sec. 5539; 34 Ark. 493; 7 Am. & Eng. R. cases 25; 11 Id., 667.

Jno. C. & C. W. England, for appellee.

The decisions of this court establish the rule, that a railroad company is not bound to be on the lookout for trespassers and the company's liability begins only when the trespasser is discovered. 49 Ark. 257 and cases cited. But when he is discovered, and in a condition that it is probable that he will not leave the track or avoid the danger, and in time to prevent injury, then the company must not only give warning but use all efforts in their power to avoid the injury. See 5 Mo. App., 435; 2 Wood Ry. Law, 1272; 17 Ind 102; 26 Id., 78; 85 Ill. 481; 39 Md. 574; Patterson Ry. Ac. Law, sec. 204; 2 Rorer Ry. Law, 1122; 1 Dillon, 579; 4 Col. 524; 2 Wood R. L., 1255-8; 67 Ala. 539.

There is sufficient evidence to support the finding of the jury, that the engineer saw Ratliffe in time to avoid the injury, and the preponderance of the evidence shows that no warning was given. Under these circumstances the company is liable. Cases sup., 54 Tex. 620; 45 Ia. 29; 46 N.Y. Sup., C. R., 474; 13 Mo. App., 352; 25 Kansas, 744; 50 Mo. 461; 74 Mo. 554.

OPINION

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 meantime, 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 $ 1500. The court refused to disturb it; judgment was entered accordingly; the defendant took his bill of exceptions and appealed. It is urged that the court erred in refusing to dismiss the action.

I. 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. " Mansfield's Digest, sec. 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. Cent. Pac. Ry. Co., 56 Cal. 388; See authorities collected in note to Lehigh Iron Co. v. Rupp, 7 Am. & Eng. R. R. Cases, 30; Shearm. & Redf. on Negl., sec. 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. 49.

II. It is argued that the evidence is not sufficient to sustain the verdict and that the court misdirected the jury and erred in refusing to charge as requested.

The plaintiff had started to walk over the defendant railway's 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 fact. 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 fifty or sixty 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 seventy-five yards, and said that he had sounded the alarm to warn the plaintiff of his danger.

Bush, who was a U.S. 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 circumstance, and that Rowland went to the car door in time to see the plaintiff about fifty yards in front of the engine. Rowland corroborated the latter part of this statement. It was in proof that the train could have been stopped within a distance of 350 feet; that the whistle was not sounded or the bell rung.

It is immaterial whether the jury was accurately correct in fixing the distance at which the engineer discovered the plaintiff on the track at not less than 200 yards. If his perilous position was discovered at a less distance the collision might have...