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

• Decision Date: 18 January 1896
• Citation: 33 S.W. 1070
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. MARTIN.
• Court: Arkansas Supreme Court

33 S.W. 1070

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

Supreme Court of Arkansas.

January 18, 1896.

Appeal from circuit court, Cross county; James E. Riddick, Judge.

Action by Mrs. S. P. Martin against the St. Louis, Iron Mountain & Southern Railway Company for death of her intestate. From a judgment for plaintiff, defendant appeals. Reversed.

Dodge & Johnson, for appellant. Block & Sullivan, for appellee.

WOOD, J.

This suit is for damages resultant, it is alleged, from the negligent killing of A. S. Martin by the appellant. The suit was brought for the benefit of the estate and of the widow and next of kin. The defense was a denial of negligence, and a plea of contributory negligence. The trial resulted in a judgment for $7,000, which this appeal seeks to reverse. The negligence of appellant is established by proof which is sufficient, and the judgment must be affirmed, unless the deceased was guilty of contributory negligence, which is the only question we need discuss. Deceased was killed where the railway crosses Union street, in the town of Wynne, as shown by a rude plat which we clip from brief of counsel and append, to make the testimony as to location more intelligible.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The three tracks at Union street were six or eight feet apart. Deceased and the witness, his companion, were crossing over the main line at about 7 or 8 o'clock at night. The road was rough, and the night very dark. The witness said to deceased, just before he came to a stand, "If you are not acquainted with the road, let me take your arm"; and witness took deceased's left arm with his right. A local going south was on the east track, and lacked about a box car, or half box car and caboose, of passing the crossing, when they walked upon the track of the main line. They "halted a second or moment, until the train passed the crossing"; and "while standing there, talking," the train backing from the south knocked witness and deceased from the track, running over and injuring deceased, from which injuries he died about 3 o'clock next morning, after suffering intensely. Witness was looking towards the south, the direction whence the train that struck them was coming, and whither the passing train was going. Witness says he did not see the train that struck them until just a moment before, and for the reason that it was so dark, and that there was no light on the caboose. Witness was asked, "Did you listen for any trains while you were there?" and replied: "I do not know that we listened, and the train was passing right in front of us. I do not know that we particularly listened for the train. I do not recollect about our listening for the approach of a train." He further said: "Had we listened, I do not think we could have heard the train that was coming from the south, because of the one moving right in front of us. The train that struck us was approaching very stealthily. It made very little noise." Witness was then asked, "How was the one that was going south?" and replied: "I do not know. It was just making ordinary noise. It was not running at a very high rate of speed; probably, three or four miles an hour. They were pulling out of the switch." Witness did not hear any bell ringing on the train that was pulling out. Witness was then asked at what rate the train was moving that struck them, and replied: "I do not know that. I should judge, from the distance it knocked me, it must have been going at least eight miles an hour. I do not know, of course. I could not tell anything about that, because it just bumped up against us. I should think, though, about six or eight miles an hour." Witness indicated, by the distance to a certain object which he pointed out, that the train knocked them about 15 feet. It was shown by this witness, who was a physician, that he had examined the deceased, Dr. Martin, that day, for life insurance, and that deceased's hearing was good, while witness' hearing was defective, both ears being affected. The crossing where Dr. Martin was killed was in the main part of the city, and people were constantly passing over it. Two locals, running from Knoble to Wynne, did all their switching at Wynne. This occurred every day. The train had been doing switching about two hours when the accident took place.

This was all the evidence bearing upon the question of contributory negligence. A dispassionate view of it, we think, can lead to but one conclusion, viz.: Had the deceased made that use of his senses which the law requires of one before going upon, or while crossing over, a railway track, his death would not have occurred, notwithstanding the negligence of the company. We make this statement knowing the settled law to be that the question of whether there is negligence or contributory negligence is always for the jury, unless the facts are undisputed, and susceptible of but one conclusion. Railway Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748; Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Railway Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569; Railway Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044; Kirksey v. Railway Co., 9 C. C. A. 321, 60 Fed. 999; Railway Co. v. Hathaway, 29 Fed. 489; Seefeld v. Railway Co., 70 Wis. 216, 35 N. W. 278; Hendricks v. Meadows, 154 Mass. 599, 28 N. E. 1054; Railway Co. v. Van Steinburg, 17 Mich. 99; 2 Wood, R. R. 1458, and cases cited; Beach, Contrib. Neg. §§ 450, 451; Thomp. Neg. 1239; Artz v. Railway Co., 34 Iowa, 153.

It is equally as well settled, where the facts are undisputed, and there could not, in reason and fairness, be any difference of opinion as to the conclusion to be drawn from them, that the question of negligence or contributory negligence is one of law. Railway Co. v. Ives, supra; Seefeld v. Railway Co., supra; Mann v. Railway Co., 128 Ind. 138, 26 N. E. 819; Mynning v. Railway Co. (Mich.) 31 N. W. 147; Railway Co. v. Ritchie, 102 Pa. St. 425; Apsey v. Railway Co., 83 Mich. 440, 47 N. W. 513; Emry v. Railway Co., 109 N. C. 589, 14 S. E. 352; 2 Wood, R. R. 1458, and cases cited; Straugh v. Railway Co., 65 Mich. 706, 36 N. W. 161; Railway Co. v. White, 46 Ill. App. 446; Gardner v. Railway Co., 97 Mich. 240, 56 N. W. 603; Grippin v. Railway Co., 40 N. Y. 34; Grostick v. Railway Co., 90 Mich. 594, 51 N. W. 667; Railway Co. v. Priest, 50 Kan. 16, 31 Pac. 674; Laveren v. Railway Co. (Iowa) 10 N. W. 268; Artz v. Railway Co., 34 Iowa, 153, and numerous cases there cited; Beach, Contrib. Neg. §§ 447, 453; Abend v. Railway Co., 111 Ill. 202; Fernandes v. Railway Co., 52 Cal. 45; Thomp. Neg. 1236. The latter proposition finds practical application in the facts of this record. The uncontroverted proof is that deceased and his companion walked over the west track, and upon the main line, where they stopped and stood for a "second or moment," talking, waiting for the train on the east track to pass out, when the backing train struck them. The language of the witness was, "when we walked upon the track of the main line." This language shows conclusively that they knew, not only that they were upon the railway track, but the particular track upon which they were standing. True, there was some evidence that deceased was a stranger in the town, and not familiar with the location; but it was also shown that he had, but a short while before, passed over the same crossing, and the language of the witness, quoted above, indicates affirmatively that they knew where they were. There is no proof that they stopped, or that they listened for the approach of a train, before they walked upon the track of the main line. But it is contended by the appellee that there is also an absence of direct proof that they did not take these precautions, and that, as the burden is upon the appellant to show contributory negligence, he must fail for want of proof to overcome the presumption of due care. The burden of proof, as the court correctly told the jury, was upon the railroad to show contributory negligence, unless it was shown by evidence for the plaintiff. It would be difficult, if not impossible, for the railway company to show by direct testimony that deceased and his companion did not use their senses of sight and hearing. Whether they did or not was a fact which might be said to be peculiarly within their knowledge. But every requirement of the law, as to the appellant, concerning the burden of proof, has been met by the proof for appellee. This shows that a witness whose hearing was and had been defective for three or four years heard, at the distance of about 12 feet, the noise of the train that was passing out. This train was ringing no bell, and only making ordinary noise. Does it not follow, as an undisputable inference, that deceased, whose hearing was shown to be unimpaired, would also have heard at the same, or even greater, distance, the noise of the train that struck him, had he listened? This is the only reasonable conclusion. For, although the witness says that the train which struck deceased was approaching stealthily, and gave it as his opinion that it could not have been heard, had they listened, yet he says he thought it was going six or eight miles an hour, which was about twice as fast as he thought the other train was going, which he did hear. His opinion, therefore, as to what he could not have heard, had he listened, is shown to have been...