St. Louis, Iron Mountain & Southern Railway Company v. Jordan

• Decision Date: 09 July 1898
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. JORDAN
• Court: Arkansas Supreme Court

47 S.W. 115

65 Ark. 429

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

Supreme Court of Arkansas

July 9, 1898

Appeal from Cross Circuit Court, FELIX G. TAYLOR, Judge.

Judgment reversed and cause remanded.

Dodge & Johnson, for appellant.

Those in charge of the train might reasonably have expected deceased to get off the track upon the giving of the usual danger signals; and until they discover the fact, they did not owe him any greater degree of care because of his being drunk. 46 Ark. 673; 25 Mich. 279; 36 Ark. 46; 36 Ark. 376; 49 Ark. 262, 263; 47 Ark. 497; 69 Miss. 631. The unimpeached testimony of all the eye-witnesses shows no negligence, and a finding of negligence is unwarranted. 41 Ark. 163; 78 Ky 621; 22 S.W. 603; 69 Miss. 231. The evidence proves contributory negligence. 26 Ark. 3; 46 Ark. 106; 26 Ark. 377 46 Ark. 388; 46 Ark. 513. The third instruction for plaintiff is erroneous, in that it entirely ignores the defense of contributory negligence. 62 Ark. 235; 62 Ark. 245; 62 Ark 164.

Rose, Hemingway & Rose, for appellee.

The killing being proved, the burden was on the appellant to excuse it and show absence of negligence. Sand. & H., Dig., 6349; 63 Ark. 636; 45 S.W. 548. The jury had a right to say that the improbable story of those in charge of the train was not true, and did not disprove negligence. 54 Ark. 214; 45 Ark. 295.

BUNN C. J. BATTLE, J., concurring.

OPINION

BUNN, C. J.

This is an action for damages for negligently killing plaintiff's intestate--First, for the benefit of the estate; and, second, for the benefit of the widow and next of kin of the deceased. The verdict of the jury was for the defendant company on the first count, but for the plaintiff on the second count in the sum of $ 1,500. On the first count the damages were laid in the complaint at $ 5,000 and on the second count at $ 10,000.

The testimony shows that on the first of March, 1894, one of defendant company's trains was being run northward on the Bald Knob branch of the Iron Mountain railroad, and, on approaching the town and station of Wynne, struck, ran over, and instantly killed plaintiff's intestate, Walters, while he was approaching the train on the track. C. C. Cradock, at the time of the accident fireman on the engine, as a witness for plaintiff, testified, in substance, that at the lower end of the railway yards at Wynne there was a sign post, marked 'Swith Limits. Slow.' This was reached by the engine about 300 feet before the engine struck the deceased, which occurred about one-half mile before reaching the station at Wynne. When the engine passed that post it was running at the rate of about twenty miles per hour, and when it struck deceased it was running at the ate of fifteen or eighteen miles per hour, and was evidently slowing up at the time of the accident. Witness saw Walters walking on the track directly towards the engine, and the engineer saw him about the same time. He was about 200 or 300 yards away when they first saw him, but was 50 or 60 yards from him when, by his staggering, they saw that he was drunk. Previously the engineer had sounded the whistle at the limit post, giving it a long sound, and, we infer, began to slow up. When they saw the man was apparently drunk, the engineer at once sounded the whistle four or five times, and put on the brakes. Witness, continuing, states: "He (the engineer) commenced that whistling when he was, I guess, 50 or 60 yards from the man. I guess the man could have got off in the 50 or 60 yards. He could have got off the track on either side. About two steps would have taken him off. With the brake lever the engineer threw the brake on. This as soon as he saw he was intoxicated,--just instantly. I do not think the engineer could have done anything else to avoid the accident. I could not tell which way the man was looking, but think he was looking down. Our train made a kind of rumbling noise. I did not know this man was drunk until I saw him stagger, as I have said." This witness was substantially supported by the others.

The evidence in support of the charge of negligence of the railroad employees in charge of the train is, to say the most of it, of the most unsatisfactory character, and, to some of us at least, it is not exactly clear; but, with proper instructions, the jury might not have reached a different verdict.

The first instruction given at the instance of the plaintiff applies solely to the first count, which, by the verdict and judgment of the court, is eliminated from this controversy. The second has reference to the measure of damages under the second count only, and it is not necessary to consider it here.

The third is a copy of section 6207 of Sand. & H. Dig., on the subject of keeping a constant lookout, which, from the uncontroverted testimony in this case, was perhaps needless, if not abstract and misleading; and, seemingly to cure any errors in giving it, the court, on its own motion, gave the following, also over the objection of the defendant: "The law makes it the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads; and, if any person or property shall be killed or injured by the neglect of any employees of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout. This law does not apply where adult persons go upon a railroad track, where they have no right to be, and carelessly allow a train to strike them; but, if you find from the evidence that the deceased, G. L. Walters, was so badly intoxicated as to be insensible of danger, and that the employees of the defendant in charge of the train that struck and killed said Walters failed to observe the above rule of law by keeping a constant lookout, and that, if they had kept such lookout, they could have discovered said Walter's insensible condition in time to prevent injuring him, you will find for plaintiff."

In saying that the lookout statute "does not apply when adult persons go upon a railroad where they have no right to be, and carelessly allow a train to strike them," the trial court did so, apparently, in recognition of the fact that this court has said in St. Louis, etc., R. Co. v. Leathers, 62 Ark. 235, 35 S.W. 216 and other cases, that the recent lookout statute does not do away with the defense of contributory negligence. But, in what follows, the court destroys or confuses all that it said in this statement. In the first place, the latter part of the instruction gives to a trespasser who is drunk an immunity from the charge of contributory negligence which a sober person would not enjoy; and in the same connection the court tells the jury that they might find from the evidence that if the trainmen had kept a constant lookout, as required by statute, they could have discovered Walters' intoxicated condition in time to prevent injuring him. That the trainmen kept the constant lookout in this case goes without controversy, unless all testimony is to be arbitrarily disbelieved. That it necessarily follows from the keeping of such lookout that the trainmen could have discovered the intoxicated condition of the deceased is not law, nor do the facts in this case warrant such a conclusion. Before this part of the instruction should have been given, there should have been something in the evidence going to show some conduct or movement on the part of the deceased not usual in a person of sound mind and in a normal condition, or some circumstance showing that the condition of the deceased should have been known in time for the trainmen to avoid the injury, before the act of staggering, of which the trainmen speak as the first indication they saw of the drunkenness of the deceased; for the undisputed evidence is that as soon as they saw this "staggering" they immediately applied the brakes, blew the whistle (which had just ceased to blow for the station), and did everything they could to avoid the...