St. Louis, I. M. & S. Ry. Co. v. Bird
| Citation | 153 S.W. 104 |
| Parties | ST. LOUIS, I. M. & S. RY. CO. v. BIRD. |
| Decision Date | 20 January 1913 |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Union County; Geo. W. Hays, Judge.
Action by J. H. Bird, as next friend of Wharton Bird, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.
Instruction No. 6, given for plaintiff, referred to in the opinion, is as follows:
J. H. Bird, as next friend of Wharton Bird, brought this suit in the Union circuit court against appellant to recover damages for injuries to Wharton Bird, alleged to have been caused by the negligence of appellant. Judgment was rendered in favor of the appellee in the sum of $11,000. While considering the motion for a new trial, the court offered to require the appellee to remit the sum of $3,000 if the appellant would waive errors and accept judgment in the sum of $8,000. This the appellant declined to do, and the motion for a new trial was overruled, and appellant duly prosecutes its appeal.
The facts are substantially as follows: Hillsboro street in El Dorado runs east and west, and crosses four or five tracks of appellant's railroad, which runs north and south. The east track is the Newport stave mill switch, and the track next west of it is No. 4, on which the accident happened. J. H. Bird and Wharton, his seven year old son, were driving in a wagon loaded with cotton seed hulls, going westward on Hillsboro street about 2 o'clock in the afternoon of November 15, 1910, and were approaching the railroad tracks with the intention of crossing them. As they got to the first track, they had to their right and north of the street a stave mill and a loading platform, and on the first track several freight cars. A switch engine was at the time north of the street and running southward on the second track approaching the crossing. Just before Bird got to the crossing, he checked his team by pulling the lines, but did not stop. He slowed up and looked and listened for trains. He did not hear any because the stave mill was running. The track next to the stave factory, as far as he could see, was covered with box cars. There were some cars standing on some of the tracks to the left, but they did not come as close on that side as they did on the other. There was a car right up to the crossing on the right-hand side that kept him from seeing the track. That was the direction the engine was coming from. He could not see the track at all in that direction, and could not see the engine. After he looked for it and could not see it, he drove on the track without knowing whether or not the engine was coming back of those cars. He knew there were switch engines constantly running around there. He did not get out to look for it, and that is the only way that he could have seen it; and he does not know whether he could have seen it then or not, because there was a curve to the east. It would not have been out of his sight until it was about 200 yards from where the accident occurred. The wagon was loaded bed full. He whipped his ponies in order to get across as soon as he could. He was sitting with his feet hanging off the front end of the wagon body. Wharton, his son, was sitting right about the middle of the wagon. When he passed beyond the cars, he saw the engine 40 or 50 feet away. He knew then that they could not get across. He made a grab at the child with his left arm and missed him. When he hit the ground, he looked up and saw the child about six feet up in the air, his feet up and head down. The engine had knocked the wagon from under him. He was lying within two feet of the drivewheels of the engine in an unconscious condition, making a whining noise.
The testimony on behalf of appellee showed that the bell was not ringing nor the whistle blowing as the engine approached the crossing. There was testimony on behalf of the appellant tending to show that the bell was ringing up to the time the engine hit the wagon; but the decided preponderance of the evidence was to the effect that no signals were given as the engine approached the crossing where the accident occurred.
The testimony on behalf of appellant tended to show that the standing cars on the track near the crossing were flat cars loaded with bolts; that the engine could be seen above these cars by one standing on the ground, and necessarily by those in wagons; that Bird and his son were both looking towards the south and did not look towards the north, whence the engine was coming. The engine ran only a few feet to the opposite side of Hillsboro street after it struck the wagon.
The testimony was conflicting as to the speed of the engine as it approached the crossing. One witness testified that the engine was running 12 or 15 miles an hour; others said it was running 4 or 5 miles an hour. As the engine approached the crossing, the testimony tended to show that there was a switchman standing on the footboard at the front end looking ahead; that the engineer was also in his cab looking out ahead.
There was testimony on behalf of the appellant that the switchman saw Bird's team as soon as it appeared from behind the standing freight cars on the first track, and at once shouted, and continued to shout until he had to step off to avoid being hit.
The engineer testified that he put on the brakes in emergency as soon as he saw the horses' heads on the track, and saw them just as soon as they came in his line of vision, and the engine was then only a few feet from the wagon. There was testimony tending to show that the boy fell on his head in the street, making a wound like a cowlick in his hair, grinding the dirt and cinders into the hide, not breaking the skin; that he was unconscious from the fall, and there was no physical evidence of injury, except the bruise on his head. The next day his temperature was 101, showing fever; and on the way home after the accident he vomited a little blood, and passed blood in his urine for 24 or 36 hours afterwards.
About four days after the accident the boy had a spasm and nervous spell, in which his limbs jerked and he cried and appeared nervous and frightened, which lasted several minutes, and these spells occurred about every 1 to 3 weeks from that time on to the date of the trial, a period of 11 months. They lasted from 5 to 40 minutes.
Before the accident he was a quiet child. Since the accident he has been very nervous and irritable. "Seems to like more racket than he did before." He played and went more than he did before. Before the accident his health was good; never had any symptoms of being nervous. Since the accident he had lost flesh, and his appetite was poor.
The testimony of physicians showed that the child had an adherent prepuce; that is, the foreskin adhered to the head of the penis a part of the way around. This was congenital. There was testimony of physicians, as experts, on behalf of the appellee, showing that in their opinion the adherent prepuce, as described in the case of Wharton Bird, would not cause the physical condition that he was in. They "would attribute his condition to the fright and traumatism, rather than to the adhesion of the prepuce to the penis." On the other hand, physicians, as experts, testified that, in their opinion, the physical condition of the child was produced by the adherent prepuce, rather than by the injuries. The physicians concurred in the opinion that it would require only a simple operation to correct the adherent prepuce. The testimony of physicians, as experts, also tended to show that an adherent prepuce would produce the symptoms present in the affliction of Wharton Bird. The plaintiff offered to have the boy produced before the jury if appellant desired, but the child was not before the jury.
Other facts will be stated in the opinion.
E. B. Kinsworthy and R. E. Wiley, both of Little Rock, and H. S. Powell, of Camden, for appellant. Gaughan & Sifford, of Camden, for appellee.
WOOD, J. (after stating the facts as above).
There was no charge of negligence in the complaint; but the appellant did not demur, and answered, denying negligence and setting up contributory negligence on the part of the appellee J. H. Bird and Wharton Bird in driving upon the railroad track in front of the approaching train, without exercising reasonable care to ascertain whether or not an engine was running there and approaching said crossing before they attempted to drive thereon.
Testimony was introduced, without objection, tending to show that appellant's servants were negligent in failing to ring the bell or blow the whistle as they approached the crossing, and also tending to show that the train was running at a speed of 12 or 15 miles an hour...
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