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

• Decision Date: 20 March 1897
• Citation: 40 S.W. 463
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. SWEET.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

Page 463

40 S.W. 463

ST. LOUIS, I. M. & S. RY. CO. v. SWEET.¹

Supreme Court of Arkansas.

March 20, 1897.

Appeal from circuit court, Lincoln county; John M. Elliott, Judge.

Action by Ada H. Sweet, administratrix of the estate of Frank Sweet, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Dodge & Johnson, for appellant. N. T. White, White & Wooldridge, and Rose, Hemingway & Rose, for appellee. J. M. Moore and Cockrill & Cockrill, amici curiæ, on the question of the statute of limitations.

BATTLE, J.

This action was instituted by Ada H. Sweet, as administratrix of the estate of Frank Sweet, deceased, against the St. Louis Iron Mountain & Southern Railway Company. She alleges in her complaint, among other things, as follows: "That on the said 18th day of September, 1890, the defendant received the plaintiff's intestate, Frank Sweet, into one of its cars, for the purpose of carrying him therein, and upon said railroad, as a passenger, from Walnut Lake to the city of Pine Bluff, in Jefferson county, in this state, for the sum and price of one and 25/100 dollars, then paid to the defendant by the said plaintiff's intestate. That the track of defendant's road between Fairfield and Pine Bluff, in said county and state, and especially at a point about three miles east of Pine Bluff, and between Pine Bluff and Fairfield station, was at the time defective and unsound, and unfit to be used for that purpose, which defendant did, or might and should, then and thereafter have known, by due care, but, not regarding their duty, they carelessly and negligently suffered it to be used, although the ties which held the rails in place were rotten and unsound, and in such condition as to be actually dangerous to the traveler over said road; and while said car was proceeding, with the plaintiff's intestate thereon, at the point last aforesaid, it was, by reason of such defect in the said track, and the unsoundness thereof, thrown from the track, and said car wrecked, and the said Frank Sweet caught therein, and bruised and mangled in a most horrible manner, from the effects of which the said Frank Sweet did languish and live for a period of ten hours after he was bruised and mangled as aforesaid, before dying, and that, during the said ten hours he so lived, he suffered great bodily pain and mental anguish. That his death aforesaid was caused by the injuries received in the manner as stated aforesaid, and by reason thereof his estate has been damaged in the sum of ten thousand dollars."

The defendant answered, and admitted that its train was derailed, and that plaintiff's intestate was injured, but denied all the allegations in the complaint charging it with negligence, and that the intestate suffered pain or mental anguish. It alleged that the deceased was guilty of contributory negligence, and that by reason thereof he lost his life. It further answered by saying that "there was and now is another action pending in the Desha circuit court, at the Watson district of Desha county, Ark., between the same parties and for the same cause of action set forth in the complaint to this action, which said suit is now on appeal to the supreme court of the state of Arkansas; that, at the trial of the said action, proof was introduced by the plaintiff, to the jury impaneled to try the said cause, of the mental anguish and bodily pain suffered by the plaintiff's intestate on account of the injuries received as herein alleged; and that under said proof a verdict was rendered for the sum of $10,000," — and pleaded ...