St. Louis, I. M. & S. Ry. Co. v. Hill
| Decision Date | 11 March 1905 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. HILL (two cases). |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Monroe County; Geo. M. Chapline, Judge.
Separate actions by E. P. Hill individually and as administrator of Mary G. Hill, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. The actions were tried together, separate verdicts and judgments were rendered for plaintiff in each, and defendant appeals. Affirmed.
B. S. Johnson, for appellant. J. H. Harrod, Walter Hendricks, and Trimble & Robinson, for appellee.
These two suits were brought against appellant railway company to recover damages resulting from the death of Mary G. Hill. She was run over by a switch engine of appellant in the railroad yards in Argenta, sustaining serious injury, from which she died about eight hours later. Appellee was her husband, and in one suit seeks to recover for damages sustained by him as husband by the alleged wrongful killing of his wife, and in the other suit sues as administrator of his wife's estate to recover for the pain and suffering endured by the deceased by reason of the injury. The allegation in the complaint relied on by appellee in each suit for recovery charges negligence on the part of the locomotive engineer of appellant as follows: The two cases were tried together by consent upon the same testimony and instructions, and separate verdicts upon each cause of action were returned by the jury in favor of the plaintiff, and separate judgments were rendered by the court accordingly.
It was and is conceded that deceased was guilty of contributory negligence in failing to observe proper care while upon the railroad track, and the only issues presented to the jury were whether or not the engineer in charge of the locomotive discovered her presence upon the track in a perilous condition in time, by the exercise of proper care, to have avoided the injury, and, if so, whether he did exercise proper care and precaution to avoid or mitigate the injury. The cases were submitted to the jury upon proper instructions narrowing the inquiry to those issues. The court gave the following instruction on motion of plaintiff: "If you find from a fair preponderance of the testimony that the employé in charge of the engine that struck Mrs. Hill discovered her peril in time to have avoided injuring her by the exercise of reasonable diligence and ordinary care, and further find that he failed to use such reasonable diligence and ordinary care, and further find that her injuries resulted from such failure, your verdict will be for the plaintiff." And also gave the following on motion of defendant: "The court instructs the jury that it is not sufficient, to enable plaintiff to recover, for the proof to show that the engineer could have or should have known of deceased's perilous position or situation, but the proof must go further, and show that he actually knew as a fact her perilous situation, and after such knowledge failed to exercise ordinary care to avoid injuring her; and unless the proof shows these facts your verdict should be for defendant." Other instructions were given in line with those copied above, and we find no error in the instructions. The modification complained of in some of the instructions asked by the defendant were properly made, so as render them consistent with those given as asked. With the issues thus clearly and properly defined, the jury found in favor of the plaintiff; and this narrows our inquiry to the sole question whether the testimony, giving it the strongest probative force, is sufficient to support the verdict. It becomes our duty, under the plain mandate of the law, to draw the strongest inference in favor of the finding of the jury that they were warranted in deducing from the evidence. Merchants' Exch. Co. v. Sanders (Ark.) 84 S. W. 786: Ry. Co. v. Wilson, 70 Ark. 136, 66 S. W. 661. 91 Am. St. Rep. 74; Ry. v. Rice, 51 Ark. 467, 11 S. W. 699, 4 L. R. A. 173; Ry. v. Kilpatrick, 67 Ark. 47, 54 S. W. 971. The injury occurred about 6 o'clock on the evening of September 16, 1902, while deceased and her sister-in-law, Mrs. F. A. Hill, returning homeward from the city of Little Rock, were walking along the tracks of appellant in the railroad yards in Argenta. They were going north, and the deceased was about 20 feet in the rear of her companion when she was struck by the engine, going in the same direction. It was a switch engine, with a footboard in front, 14 inches in width and about 14 inches above the rails, used as a step for the switchmen to stand upon. There was testimony tending to establish the fact that...
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