St. Louis, I. M. & S. Ry. Co. v. Kelley

• Decision Date: 29 June 1895
• Citation: 31 S.W. 884
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. KELLEY.
• Court: Arkansas Supreme Court

31 S.W. 884

ST. LOUIS, I. M. & S. RY. CO. v. KELLEY.

Supreme Court of Arkansas.

June 29, 1895.

Appeal from circuit court, Clark county; Rufus D. Hearn, Judge.

Action by Benjamin F. Kelley, an infant, by his next friend, S. H. Kelley, against the St. Louis, Iron Mountain & Southern Railway Company, for damages for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action for an injury to Benjamin F. Kelley, an infant, brought by S. H. Kelley, as his next friend. The appellee, Benjamin F. Kelley, an infant three years of age, while standing upon a trestle on the railway of defendant, was struck by one of its trains, and injured. It was alleged that the injury was occasioned by the negligence of the employés of defendant having charge of the train, in failing to keep a lookout. This was denied by defendant, and it alleged that the boy, Benjamin F. Kelley, came upon the trestle such a short distance in front of the engine, and so suddenly, that it was impossible to avoid striking him. At the time of the accident the engine was backing, with no cars attached. A brakeman named McFadden was stationed on the tender to keep a lookout along the railway track in the direction the engine was moving, so that he might signal the engineer to stop when necessary to avoid striking persons or property. It was contended by plaintiff that the brakeman saw the child in time to have stopped the engine before striking him, but that the engineer was carelessly looking in another direction, and did not see the signal given by the brakeman until it was too late to stop the engine and avoid the injury. To show that the engineer did not keep a proper lookout, the court permitted Peter Cornelius, a witness for plaintiff, to testify: That at the time of the accident he was working at the house of S. H. Kelley, father of appellee, about 75 or 100 yards distant from the place of the accident. When the accident occurred his attention was attracted by the engine stopping, and by a scream from a girl. He looked up, and saw McFadden, the brakeman for the defendant, coming towards the house with the injured child in his arms. The child was apparently dead. He was then asked to state whether McFadden, at the time witness met him with the child in his arms, made any statement as to the cause of the injury, to which question witness answered: "Well, he told me, when I asked him how it occurred, at that time, that he gave the engineer the signal in time to have stopped before they hit the child, but he was looking back, the other way, and didn't see him until it was too late; then he reversed his engine, but it hit the child." To the introduction of this testimony defendant excepted at the time.

Dodge & Johnson, for appellant. Murry & Kinsworthy, for appellee.

RIDDICK, J. (after stating the facts).

The question for us to determine is whether this statement of the brakeman, McFadden, was part of the res gestae, and proper to go to the jury as evidence tending to show negligence. This statement was made after the accident, in response to an inquiry by the witness Cornelius. The acts to which it referred were completely past. The injured child had been borne away from the place of the accident. It was...