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

• Decision Date: 24 March 1906
• Citation: St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 94 S.W. 613, 78 Ark. 251 (Ark. 1906)
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. TOMLINSON.
• Court: Arkansas Supreme Court

94 S.W. 613

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

Supreme Court of Arkansas.

March 24, 1906.

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

Action by Enos J. Tomlinson, by his next friend, W. H. Tomlinson, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment of favor of plaintiff, defendant appeals. Affirmed.

B. S. Johnson, for appellant. W. A. Oldfield, S. D. Campbell, and W. S. Wright, for appellee.

BATTLE, J.

This action was instituted by Enos J. Tomlinson, by his next friend, W. H. Tomlinson, against the St. Louis, Iron Mountain & Southern Railway Company. Plaintiff alleged in his complaint that "he was a minor eleven years of age; that, while he was being driven across the railroad at Magness Station a wagon, the defendant negligently, wantonly, and recklessly ran its engine against the wagon; that the defendant negligently failed to ring the bell or sound the whistle of its engine for the crossing; that its employés negligently failed to keep a lookout for persons and property at the crossing; that the engineer and fireman were unskillful and incompetent, and, at said time, were in a state of intoxication; that, though able to avert the danger of plaintiff, after discovering same, said employés failed and neglected to do so; that, as a result of the engine being run against the wagon, the plaintiff was thrown out of same and his brain, eyes, and vision were injured to his damage in the sum of $20,000."

The defendant answered and specifically denied all the material allegations in plaintiff's complaint, and alleged that his injuries were caused by his own contributory negligence.

The jury in the case returned a verdict in favor of the plaintiff for $15,000, and the defendant appealed.

The jury might have found, from the evidence adduced at the trial in this action, the following facts:

"A special train, called a pay train, was run out of Poplar Bluff, Mo., and from Newport up the White River Branch, a considerable distance above Batesville, Ark., and on its return, at or about Batesville, the locomotive engine broke down and became what is called a dead engine. * * * Upon the disabling of the engine, another engine and crew were wired for, and the same were sent from Newport to the relief of the special train. * * * This relief engine was attached to the special pay train at Batesville early in the morning of October 17, 1902, and proceeded towards Newport, and about 7 o'clock in the morning, much earlier than any regular train was due at Magness Station, struck the wagon in which plaintiff was riding.

"A train going from Batesville towards Newport, before reaching Magness Station, would pass the `Oak Grove Crossing' about a mile and a half before reaching Magness, then after considerable distance would pass the `Military Road Crossing' [a county road], then after going 370 yards would pass the `Newark & Batesville Road Crossing' [a county road], and then after going through a cut 75 yards long would pass over a trestle, and then over the Magness Public Crossing, where the collision occurred. [This road, although it had not been established by the county court, was used by the public more than the other two roads, and had been so used by the public for about twenty years, and defendant railroad company had put the crossing in there.] * * * Neither the whistle was sounded, nor the bell rung, nor other warning was given for either of these three crossings at or about the time of the collision. * * * In going out of the cut and approaching Magness Crossing, there was a slight curve toward the left, on account of which the engineer, on the right-hand side, while keeping a lookout ahead, could not see the wagon in which plaintiff was riding, while it was on or approaching the track from the left-hand side. The fireman, being on the left-hand side, the best position to make the lookout effective, was not keeping a lookout. * * *

"If the statutory signals had been given for either of the three crossings named, such warning could have been heard, and the collision and injury might have been averted. If the fireman, who being on the inside of the curve and in position to make the lookout most effective, had been keeping such lookout, he would necessarily have seen the wagon approaching not only in time to have given effective statutory warning, but also in time to have caused the train to come to a full stop before reaching the Magness Crossing, where the collision occurred. * * *

"Plaintiff was a boy about eleven years of age riding in the wagon, which was driven by his brother, Ed Tomlinson, and his father. W. H. Tomlinson, standing in the rear end of the wagon, and he standing between the two. The driver, Ed Tomlinson when about twenty feet from the track, looked up the track towards Batesville, and, seeing no train and hearing no bell or whistle sounded, drove on and attempted to cross the track, at the same time looking down the track towards Newport, from which direction a gravel train was expected about that time. Just as the driver was driving his wagon across the track, the special train at an unusual hour for trains from that direction, and at an unusual speed for trains upon that road, and without any warning or statutory signal, and without any lookout on the left side, where, on account of the construction of the track, a lookout would be most effective, struck the wagon, knocking the plaintiff out and injuring him.

"The plaintiff, by the collision and fall, had his skull broken; the fracture being about one inch to the right of the middle line of the skull, on the posterior part of the frontal bone, and being about one inch by its shortest diameter, and about an inch and a quarter by its longest diameter. He was rendered unconscious by the fall and remained so for about 18 hours. Doctors operated upon him. By the fall a piece of bone was driven upon his brain, lacerating and puncturing the dura mater, a membrane forming the outer covering of the brain. This piece of bone, together with other pieces, was removed by the operation called trephining, and the hole in the skull, remaining after the operation, was described by the doctors who operated upon him as being about the size of a silver half dollar. After the operation the boy remained semiunconscious for five or six days. The wound suppurated, and he had fever for about ten days. Upon the healing of the wound, an adherent, depressed scar remained and the aperture was partially closed with a cartilaginous substance, and from the edges of the old bone, and below the natural level, there appears to be a very slight and slow growth of a harder material which may perhaps in time become bone and make progress towards closing the aperture with bony substance, which, if it does take place, will be below the level of the old bone, and produce permanent pressure upon the brain. Before the injury the boy was subject to headache about once a month, and since the injury he has been subject to headache twice a month, and the spells are of longer duration. Before the injury he was fairly intelligent for a child of his age, learned with average rapidity, was good-natured, and eventempered, obedient to his parents and industrious; whereas, since the injury he has been dull and slow of perception, disobedient, hard to control, quick-tempered, easily irritated, and forgetful. Before the injury the boy's eyes and vision seemed to be normal, but since he at times appears to see two objects when looking only at one object.

"According to expert testimony adduced in the case, `the future mental development...