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

• Decision Date: 02 May 1910
• Citation: 128 S.W. 60
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. ROBINSON.
• Court: Arkansas Supreme Court

128 S.W. 60

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

Supreme Court of Arkansas.

May 2, 1910.

Appeal from Circuit Court, Chicot County; H. W. Wella, Judge.

Action by Crawford Robinson against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

W. E. Hemingway, E. B. Kinsworthy, E. A. Bolton, and Jas. H. Stevenson, for appellant. B. F. Merritt, for appellee.

FRAUENTHAL, J.

This was an action instituted by Crawford Robinson against the St. Louis, Iron Mountain & Southern Railway Company to recover damages which he alleged that he sustained by reason of the negligent killing of his son, Joe Robinson, who was a minor. The appellant maintains a station at Macon Lake, a point upon its line of railroad, at which one of its section foremen resided. On the afternoon of Sunday, July 21, 1907, this section foreman requested some men to take the hand car and get a keg of water for him. The day being Sunday, the section foreman was not engaged during the entire day in performing any work for the appellant. The hand car was situated on an offset or spur on the side of the railroad track and had been locked to the rails and not used during the entire day for the purposes of appellant. The men got the hand car and placed it on the railroad track to proceed to the place where the water was located, about 300 yards from the station. A number of boys were lingering about the station. Amongst them was Joe Robinson, who was 12 years old. When the men started the hand car, these boys got on it for the purpose of taking a ride. There is a sharp conflict in the testimony as to whether or not the section foreman permitted these boys to ride on the car; but the testimony on the part of the appellee establishes the fact that he permitted them to do so. After the water was secured, and while they were returning to the station upon the hand car, the boy, Joe Robinson, fell therefrom. The car ran over him, and he was so seriously injured that he died from the effect of these injuries on the following day. There is a conflict in the evidence as to the manner in which the injury occurred. Some witnesses on the part of the appellant testified that the boy jumped from the car just as it neared the station and had slackened its speed, and that after jumping from the car he fell under its wheels. The testimony on the part of the appellee, however, establishes the fact that the car was going at a high rate of speed, and that the boy fell off the car without any fault on his part. The uncontroverted testimony, however, establishes the fact that the section foreman was not on that day (which was Sunday) engaged in work of any kind for appellant. He sent for the water for his sole private use at his house. The men whom he requested to go after the water were not in appellant's employ. The foreman had no authority to employ these men for this purpose, and he had no authority from, nor was there any custom of, the appellant to permit boys to ride on its hand cars. The procurement of the water was not for the benefit of the appellant or for any of its employés while engaged in work for it, but was solely for the independent purpose and use of Williams, the section foreman. A verdict was returned in favor of appellee for $1,500, and from the judgment entered thereon the railroad company has prosecuted this appeal.

We do not think that it is necessary to set out the instructions that were given by the lower court or which were refused, and the rulings thereon of which appellant complains, because we are of the opinion that under the uncontroverted testimony the appellant was not...