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

• Decision Date: 01 January 1912
• Citation: 142 S.W. 527
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HUTCHINSON et al.
• Court: Arkansas Supreme Court

Page 527

142 S.W. 527

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

Supreme Court of Arkansas.

January 1, 1912.

Appeal from Circuit Court, Independence County; R. E. Jeffery, Judge.

Action by Mrs. T. Hutchinson and others against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

This suit was brought by Mrs. T. Hutchinson, for herself, as widow of the deceased and as next friend for the appellees, his children and heirs, for damages for the wrongful death of the deceased, alleged to have been caused by the negligence of the railway company.

It is alleged: That deceased resided in Newark and purchased a round trip ticket from that station to Earnhardt; that, while he was waiting at Earnhardt to take passage on the passenger train due to arrive there about 6 o'clock p. m. going to Newport that he might return to his home, he was run over and killed by a through freight train. "That said freight train was running in the direction of Newport, Ark., and on said passenger train's time and at an unusual rate of speed. That it was running backwards and without any headlight. That the night was cloudy, raining, and very dark. That defendant's employés failed to keep a lookout on said train for persons and property or give any warning, either by bell, whistle, or otherwise, of the approach of said freight train. That there was no light of any kind at said station, and grounds were very dark. That said station is surrounded on three sides by high mountains, which make the station and grounds thereof become dark quicker than it would otherwise. That defendant had on said date of the killing permitted a long string of freight and box cars to remain on the said track, extending for several hundred feet at and near the main track where the passengers got off and on defendant's trains, and in a way and manner which obstructed the view and passage of passengers getting on and off said trains. That when deceased was undertaking to cross defendant's track for the purpose of immediately taking passage on defendant's passenger train, which was then due, to return home, he not knowing that said freight train was then approaching, and under and by virtue of the premises aforesaid he could not and did not observe its approach and was struck and killed within a few feet of the place in which he was to board his said passenger train by said through freight train. That said deceased was struck and killed through and by the carelessness and negligence of defendant's employés. And on account of the death of said deceased said plaintiffs state that they have been damaged in the sum of $20,000."

The answer denied the allegations of the complaint and that plaintiffs had been injured in any amount; alleged that the death of Perry Hutchinson, their intestate, was caused and contributed to by his own negligence, and that same was caused and brought on by a risk which he voluntarily assumed.

The testimony tended to show that the deceased, after purchasing a round trip ticket, had gone, on the day of the injury, to Earnhardt, a flag station on defendant's line of railroad, near which was located a distillery, for the purpose of purchasing some whisky for Christmas. There was a passing track at this station, west of the main line, the distance between the centers of the two tracks being 13 feet, and between the inside rails 9 feet, and all the space between filled level and ballasted. Two dirt roads cross the main line. There was a water tank east of the main line, and 196 steps south of a road crossing of it, and from said tank to another crossing was 393 steps, and the main track was straight for 500 feet north of the water tank and half a mile south of it. Freight cars were standing on the passing track, and somewhere south of the water tank there was a cut or opening of about a car length left between said cars. Immediately west of the passing track and on the edge of the right of way were three box cars on the ground, used as section houses, and where some of the section hands lived, two of them south, and the other, the largest and longest box car, used as a dining car, was north of this cut or opening between the cars on said passing track, which were between them and the main line, extending probably 150 feet towards the water tank, and extended north. The whisky warehouse was south of said cut or opening and between the right of way and the river. The place for passengers to take the trains going south was north of the water tank, at which the trains were accustomed to stop, and the testimony is conflicting as to which side of the track was treated as the station, and there was no platform there.

The day of the injury was a cold, bleak, cloudy one, and there was no depot building, nor any provision for the protection of passengers from the weather. The deceased and others had been to the warehouse and in the box cars used by the sectionmen, had eaten dinner in the long box car, and the deceased had taken a few drinks, had a bottle of whisky, and had been treating some of the men in said cars. The passenger train from the north, going towards Batesville, and upon which the deceased expected to return home, was due at 5:50 p. m., and was a few minutes late. About 6 o'clock, Hutchinson and his companion, who were waiting in the middle box car used as a section house immediately south of the cut or opening between the cars upon the siding, heard a train whistle, and one of the sectionmen said, "There is your train." They immediately left the box car, and, shortly the injury occurred, as the witness, James Langston, who was with him, testified: "We came out of the door of the middle box car, came around until we got to the side track and walked between the cars, and could see as we went over there, continuously, the water tank. Hutchinson was ahead of me 10 or 12 feet when we got to the string of box cars, and just about the time I turned he said, `Let's get across the track.' He was in a fast walk or run, and I heard the noise of the train, and I just threw my eyes on Hutchinson, and they were so close on him that I couldn't tell whether he got across, but I rather thought he did. It was dark at that time. I could see all of the water tank, and there was no obstruction between me and the water tank, except the train that was coming there. I was going onto the side track and threw my eyes from the track, and then looked again to see where he was, and they were so close together that I couldn't tell whether he made it across or not. When he spoke to me, he must have been something like on the main track, because when he spoke the noise of the train drew my attention. When he finished talking and I heard the noise of the train, the train was in the way, and I didn't see Hutchinson struck. I checked right on the side track when I first heard the noise of the train and saw the bulk of the train. I looked as soon as I could while crossing the side track. When he (Hutchinson) said this and I heard the train, I was right at the north end of the box car. Before that time I didn't see any train approaching, didn't hear the bell ringing or the whistle blown, or escaping steam, and didn't hear the train before the moment he spoke to me and said, `Let's get across the track.'"

The train that killed deceased was a freight train, an engine and caboose, the engine running backwards, and the evidence was conflicting as to whether there was a light upon the front end of it or not; some of the witnesses testifying there was none, while the railroad employés said there was a lantern hanging over the end of the tender, which was in front. A strong wind was blowing towards the approaching train, which was making very little noise and was running 10 to 15 miles an hour, according to the statement of the conductor, who also said it was dark when he passed Earnhardt, while other witnesses testified that it was going all the way up to 35 miles an hour. None of the employés on the train saw deceased and did not know of the injury until they reached Batesville. The passenger train stopped at the water tank for water and to take on passengers, as was the custom, and it was the understanding of the deceased that it would do so. The water tank was north of the cut or opening between the freight cars on the side track between which and it deceased was killed, but how far the evidence does not disclose. There was room between the main line and the box cars on the side track for a person to walk, and deceased could have remained upon that side of the main line and should have done so, according to the railroad employés, to have boarded the train at the proper place.

There was testimony as to the earning capacity of the deceased, and his treatment of his family, and the amount contributed to their support. The court then instructed the jury, gave 5 of the 23 instructions asked by the defendant, modified 2 others and gave them as modified, and gave 3 instructions upon its own motion.

The jury returned the following verdict: "We, the jury, find for the plaintiff in the sum of $1,500. And for the minor children the sum of $3,000, making a total of the sum of $4,500. S. A. Ruddell, Foreman." And from the judgment the defendant appealed.

W. E. Hemingway, E. B. Kinsworthy, Jas. H. Stevenson, and S. D. Campbell, for appellant. S. A. Moore and Jno. W. & Jos. M. Stayton, for appellees.

KIRBY, J. (after stating the facts as above).

It is contended that the verdict is not sustained by the testimony; that certain testimony was improperly admitted; that the court erred in giving instructions numbered 2, 3, and 4 at plaintiffs' request, in giving instruction numbered 1, on its own motion, in refusing to give appellant's instructions, as requested, and in modifying and giving, as modified, two of same. We do not propose to review appellant's numerous objections, nor set out all of the instructions...