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

• Decision Date: 07 January 1907
• Citation: 99 S.W. 81
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. STANDIFER et al.
• Court: Arkansas Supreme Court

99 S.W. 81

ST. LOUIS, I. M. & S. RY. CO. v. STANDIFER et al.

Supreme Court of Arkansas.

January 7, 1907.

Appeal from Circuit Court, Independence County; Frederick D. Fulkerson, Judge.

Action by Susan A. Standifer and others against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

B. S. Johnson, for appellant. Oldfield & Cole and Wright & Reeder, for appellees.

RIDDICK, J.

This is an action by the widow and children of T. Y. Standifer against the Iron Mountain Railway Company to recover damages for his death. Standifer was employed by the company as a section hand, and, while he with other employés was on a hand car which was being propelled along the railway track, the car was overtaken and struck by the engine of a passenger train, and Standifer was killed.

The circuit court told the jury, in substance, that, as Standifer was struck and killed by the train of the defendant company, this made out a prima facie case of negligence against the company, and that to escape liability the company must show either that its employés in charge of the train were not guilty of negligence, or that Standifer was guilty of contributory negligence. Counsel for defendant contends that this instruction was erroneous, for the reason that Standifer was an employé of the company at the time of the accident. It is true that it has been held by this court that, when an employé of a railway company is injured by a defect in the machinery or track of the railway company, the injury under such circumstances does not of itself raise a presumption of negligence on the part of the master. St. L. & S. F. Ry. Co. v. Hill (Ark.) 94 S. W. 914; Railway v. Harper, 44 Ark. 529; Patton v. T. & P. Ry., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361. But the death of Standifer was not caused by a defect in machinery or track. He was not one of those in charge of the train that caused his injury. While riding on a hand car he was struck by a train and killed. If the accident was due to the negligence of the employés of the company in charge of the train, it was either negligence in failing to keep a lookout, or negligence in failing to stop the train after Standifer and those on the hand car were seen on the track. Now the statute not only requires that the employés in charge of a running train shall keep a constant lookout for persons and property on the track, but provides that in case of an injury "the burden of proof shall devolve upon such railroad to establish the fact that...