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

• Decision Date: 07 February 1910
• Citation: 125 S.W. 654
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. SHAW.
• Court: Arkansas Supreme Court

125 S.W. 654

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

Supreme Court of Arkansas.

February 7, 1910.

On Rehearing, February 28, 1910.

Appeal from Circuit Court, Hempstead County; Jacob M. Carter, Judge.

Action by J. H. Shaw, as administrator of the estate of Joe Shaw, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kinsworthy & Phaton and Jas. H. Stevenson, for appellant. McRae & Tompkins and D. L. McRae, for appellee.

McCULLOCH, C. J.

This is an action instituted by the administrator of the estate of Joe Shaw, deceased, to recover damages resulting from the injury of said decedent by one of appellant's passenger trains at Hope, Ark. Deceased was a boy 17 years of age, and was on his way from Emmett, a station on appellant's road, to Washington, Ark., which is on the line of the Arkansas & Louisiana Railway Company. He came from Emmett to Hope over appellant's line, and at the time he was run over by the train he was waiting for his train to start on the Arkansas & Louisiana Railroad. The two roads jointly used the same station and platform at Hope. Deceased was accompanied by his brother, who was his elder by only two years. While waiting for the train he, with other passengers, was on the platform. While he was standing on the platform a few feet from the railroad track, and looking up the track, he either was struck from behind by a moving baggage or express hand truck, and knocked or jostled toward the track, or stepped toward the track to get out of the way of the truck. This occurred just as a passenger train from the south passed along at a high rate of speed, and he was caught by the pilot beam of the engine, knocked under the train, and mortally injured. Some of the witnesses say he was struck from behind by the truck, and knocked or jostled toward the track. Another witness says he was struck by the truck which "kinder staggered him, and he just made one step before the train hit him." Others say he stepped over toward the track to get out of the way of the truck and lost his balance, and another witness says that deceased was never in the way of the truck, but took a position on the platform close enough to the track for the pilot beam of the engine to strike him. It appeared that he was unconscious of the approach of the truck on the platform or of the train, and was looking in the other direction. Another train was switching in the yard near by, and there was enough noise and confusion to drown the noise of an approaching train. The testimony warranted a finding that no signals, by bell or whistle, were sounded by the approaching engine.

The court, over appellant's objections, submitted the case to the jury on the following instructions requested by appellee: "(2) You are further told that where a railroad company is running its trains through populous communities, towns, and cities, where the presence of persons upon the track is to be expected, it is its duty to give notice in some way, either by sounding the whistle, ringing the bell, or in some other way, of the approach of the train, and, if necessary, to reduce the speed of the train. So in this case, if you believe from the evidence that the deceased was without fault, and that he was killed by reason of the failure of the defendant to discharge its duty in this regard, your verdict should be for the plaintiff. (3) If you believe from the evidence that the death of the deceased was caused by the negligence of the defendant company, a recovery will not be defeated on the ground of contributory negligence, unless it appears from the evidence that the deceased himself failed in the exercise of ordinary prudence, and that such failure so contributed to the injury that it would not have occurred if he had been without fault." The court also gave four other instructions at appellant's request as to the duty of deceased under the circumstances, and also gave the following at appellant's request: "The jury are instructed that the defendant had the right to run its train through the town of Hope without stopping, and that the employés of defendant in charge of said train had a right to presume that passengers and parties on the platform would keep out of the way of moving trains, and the jury are instructed that the defendant is not liable for running its trains through the said town of Hope at the speed shown by the evidence."

It is contended that if the evidence shows that deceased was struck by a hand truck, operated by a servant of the express company, the alleged negligence of the trainmen in failing to give signals was not the proximate cause of the injury, and that instruction No. 2 was erroneous in submitting the case to the jury on that...