St. Louis, Iron Mountain & Southern Railway Co. v. Standifer

• Decision Date: 07 January 1907
• Citation: 99 S.W. 81,81 Ark. 275
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STANDIFER
• Court: Arkansas Supreme Court

99 S.W. 81

81 Ark. 275

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STANDIFER

Supreme Court of Arkansas

January 7, 1907

Appeal from Independence Circuit Court; Frederick D. Fulkerson Judge; affirmed.

Judgment affirmed.

B. S Johnson, for appellant.

1. The court erred in instructing the jury, that, the killing by the operation of appellant's train being proved, the presumption was that it was due to negligence on the part of those in charge of the train, and that, unless deceased was guilty of contributory negligence, the burden was on appellant to prove that its employees were not negligent in operating the train. 79 Ark. 76; 44 Ark. 527; 46 Ark. 555; 51 Ark. 467; 1 Cold. (Tenn.), 611; Wood, Master & Servant § 382; 51 Ark. 467; 179 U.S. 658; 123 F. 61.

2. Appellee having rested her case after proving the killing by appellant's train, and appellant having shown by uncontradicted testimony that its train was running on its schedule time, rounding a curve, and that the engineer stopped the train as quickly as possible, after discovering the danger of deceased, it was error to refuse appellant's request for a peremptory instruction.

3. The court erred in giving its 11th instruction on the measure of damages, because there was no proof that deceased gave his children any instruction, or physical, moral or intellectual training.

Oldfield & Cole and Wright & Reeder, for appellee.

1. The killing by one of appellant's trains being proved, a prima facie case of negligence was made out against appellant, and the burden devolved upon it to prove that its operatives in charge of the train were not negligent. Kirby's Digest, §§ 6607, 6773; 65 Ark. 235. The burden of proof placed upon the appellant inures to the benefit of its employees as well as other persons. 2 Labatt, Master & Servant, 2321. Neither the foreman of the section crew, the fireman nor the engineer was a fellow-servant of deceased. Kirby's Digest, §§ 6658, 6659; 65 Ark. 138. See, also, 39 So. 845; 116 Ill. 356; 77 S.W. 890; 78 S.W. 275; 58 Ga. 485.

2. The peremptory instruction asked by appellant was properly refused. The jury were warranted by the physical facts in disbelieving the engineer's testimony that he was keeping a constant lookout and did all he could to stop the train. 54 Ark. 214.

3. The eleventh instruction on the measure of damages was based on competent testimony, and was properly given. 57 Ark. 306; 60 Ark. 559; 71 Ark. 258.

OPINION

RIDDICK, J.

This is an action by the widow and children of T. Y. Standifer against the Iron Mountain Railway Company to recover damages for his death. Standifer was employed by the company as a section hand, and while he, with other employees, was on a handcar which was being propelled along the railway track the car was overtaken and struck by the engine of a passenger train, and Standifer was killed.

The circuit court told the jury in substance that, as Standifer was struck and killed by the train of the defendant company, this made out a prima facie case of negligence against the company, and that to escape liability the company must show either that its employees in charge of the train were not guilty of negligence or that Standifer was guilty of contributory negligence. Counsel for defendant contends that this instruction was erroneous for the reason that Standifer was an employee of the company at the time of the accident. It is true that it has been held by this court that when an employee of a railway company is injured by a defect in the machinery or track of the railway company, the injury under such circumstances does not of itself raise a presumption of negligence on the part of the master. St. Louis & S. F. Rd. Co. v. Hill, 79 Ark. 76, 94 S.W. 914; St. Louis, I. M. & S. Ry. Co. v. Harper, 44 Ark. 524; Patton v. T. & P. Ry., 179 U.S. 658, 663.

But the death of Standifer was not caused by a defect in machinery or track. He was not one of those in charge of the train that caused his injury. While riding on a handcar, he was struck by a train and killed. If the accident was due to the negligence of the employees of the company in charge of the train, it was either negligence in failing to keep a lookout or negligence in failing to stop the train after Standifer and those on the hand, car were seen on the track.

Now the statute not only requires that the employees in charge of a running train shall keep a constant lookout for persons and property on the track, but provides that in case of an...