St. Louis, I. M. & S. Ry. Co. v. Denty
| Decision Date | 07 November 1896 |
| Citation | 37 S.W. 719 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. DENTY. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Hot Spring county; Alexander M. Duffie, Judge.
Action by Imogene Denty against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.
Imogene Denty, an infant four years of age, was struck and injured by a train upon appellant's railway. This action was brought to recover damages for her injury. The accident occurred at a station called "Donaldson," an unincorporated village having three stores and a planing mill, and where several families lived. The little girl, Imogene, with her grandmother, Mrs. Riley, were walking east towards the railway track, intending to pass the same at a public crossing in said village. A passenger train — the "Cannon Ball" — was at the same time approaching from the south, and about to pass the station without stopping. The train gave a long whistle for the station, and four short blasts for the crossing. There was conflict in the testimony as to whether the bell was rung or not. Mrs. Riley had a sun bonnet on her head, and she did not at once see or hear the train. She held Imogene by the hand, and walked on until she came to the side track, about 10 feet from the main track upon which the train was approaching. She then noticed the train, and stopped, standing upon or near the side track, far enough away from the main track to be out of danger from the train. At this time Imogene suddenly broke loose from her, and attempted to run across the track in front of the train. She had gotten nearly across the track, when she was struck by the engine, and thrown some distance forward and off the track to the right of the train. She subsequently recovered from her injuries. The other facts sufficiently appear in the opinion. There was a verdict for plaintiff, and damages assessed at $1,000.
J. E. Williams and Dodge & Johnson, for appellant. W. E. Atkinson, for appellee.
RIDDICK, J. (after stating the facts).
In this action damages are sought for an injury to Imogene Denty, a child four years of age. She was struck by a train while attempting to cross the track of appellant's railway at a public crossing in a small village or hamlet called "Donaldson." A consideration of the evidence convinces us that the case turns on the question whether the employés in charge of the train could have avoided the injury by keeping a proper lookout, and also whether that question was properly presented to the jury. It is true there is conflict in the evidence as to whether the signals for the crossing where the injury occurred were given by the trainmen as required by the statute, and the presiding judge instructed the jury that they should find for the plaintiff if they believed that the injury was occasioned by the failure to give such signals. But it seems plain that the failure to give such signals, if proved, had no causal connection with the injury complained of. Mrs. Riley, the grandmother of Imogene, a lady 64 years of age, with whom Imogene was walking at the time, saw the train before she had gotten to the main track of the railway upon which the train was approaching. She stopped, with Imogene, on the side track, and out of danger from the train. There is nothing in the evidence to justify a finding that, had she heard the signals, she would have stopped before she did, or that she would have occupied a safer position while the train was passing. The failure to give the signals did not cause her to come within dangerous proximity to the train, nor was the injury caused by the position in which she and Imogene stood. It was occasioned by the fact that Imogene suddenly broke away from her grandmother, and attempted to cross the track. With this act the failure to ring the bell had no connection, for Imogene was too young to understand the meaning of such signals had they been given. We therefore think it was improper to instruct the jury that they should find for the plaintiff if they believed that the injury was occasioned by the failure to give the statutory signals required for crossings. There was no evidence upon which to base such an instruction, and it was likely to mislead the jury. Railway Co. v. Roberts, 56 Ark. 387, 19 S. W. 1055. The instructions also permitted the jury to decide whether the speed of the train was unreasonable or not. But we think that it was not negligence for the railway company to run its regular passenger train past a way station at the rate of 30 miles an hour, when the track near the station is straight, so the train could be seen some distance away, and the train is run on schedule time. It is necessary for the public convenience that passenger trains should make fast time. The people at the station had reason to expect the approach of the train, for it was running on its regular schedule time, and at its usual speed. The track was straight, and the train could be seen some distance away. There was, in our opinion, nothing to justify a finding that such speed was unreasonable; and we think it was improper to submit that question to the jury for determination. Tobias v. Railroad Co., 103 Mich. 330, 61 N. W. 514.
From the instructions given we do not know that the verdict of the jury was not based on a finding that the speed of the train was...
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