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

Decision Date20 March 1897
Citation40 S.W. 463,63 Ark. 563
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SWEET
CourtArkansas Supreme Court

Appeal from Lincoln Circuit Court, Varner District, JOHN M. ELLIOTT Judge.

Reversed and remanded.

Dodge & Johnson for appellent.

1. There has been a recovery in this case once, and there is no evidence to sustain an additional verdict. 60 Ark. 550; Sand. & H. Dig., sec. 5908; 53 Ark. 126. There were no debts due by the deceased intestate, as none had been probated within two years.

2. There was one issue of defendant's negligence, and one only, presented by the pleadings and proof. That was negligence predicated on the failure to keep a safe track. In the first instruction and others the court told the jury they could find for plaintiff if they believed defendant was negligent in the "operation of its train." This was prejudicial error. 52 Ark. 524; 14 How. 486; 97 Mass. 361; 56 Ill. 138; 34 A. & E. R. R. Cas. 405; 2 Wood, Rys. pp 1074-1079; Hutch. on Car. secs. 502-529; Patterson, Ry. Acc Law, sec. 247; 93 U.S. 291; 34 A. & E. R. Cas. 556.

3. It was error to instruct the jury that they might find for plaintiff for medical attention and funeral expenses, as there was no proof of either.

4. The action is ex delicto, and barred.

N. T. White, White & Wooldridge, and Rose, Hemingway & Rose for appellee.

1. The evidence shows the existence of bills for both medical attendance and funeral expenses. There was no evidence that these claims had not been presented and allowed, or that they were barred. The plea of limitation is personal. Wood, Lim. sec. 7; 13 Hun, 1130. The estate was bound for these expenses. Appellant cannot complain if the estate enjoyed generous treatment from its creditors; that in no way reduced the loss. 57 Ark. 306, 312. There is nothing to show that the jury made any allowance for these items.

2. No error of the court in instructing the jury as to negligence could have prejudiced it. The train left the track where the rails were rotten. The law presumed negligence. The court might have charged that defendant was negligent. 60 Ark. 550.

3. The action was ex contractu, and the limitation is three years. 41 Ark. 476; Patterson's Ry. Acc. Law, sec. 341; 3 Am. & Eng. R. Cases, 444-446; Pomeroy, Remedies, etc., 567; Cooley on Torts, pp. 90, 91, et seq.; Bliss, Code Pleading, sec. 152; 58 Ark. 136; 61 N.Y. 583; 59 N.Y. 156, 162; 3 Gr. Ev. sec. 208; 31 Ohio St. 537, 543; 40 P. 779.

OPINION

BATTLE, J.

This action was instituted by Ada H. Sweet, as adminstratrix of the estate of Frank Sweet, deceased, against the Iron Mountain & Southern Railway Company. She alleges in her complaint, among other things, as follows: "That on the said 18th day of September, 1890, the defendant received the plaintiff's intestate, Frank Sweet, into one of its cars, for the purpose of carrying him therein, and upon said railroad, as a passenger from Walnut Lake to the city of Pine Bluff, in Jefferson county, in this state, for the sum and price of $ 1.25 then paid to the defendant by the said plaintiff's intestate. That the track of defendant's road between Fairfield and Pine Bluff in said county and state, and especially at a point about three miles east of Pine Bluff, and between Pine Bluff and Fairfield station, was at the time defective and unsound, and unfit to be used for that purpose, which defendant did [know], or might and should then and thereafter have known, by due care, but, not regarding their duty, they carelessly and negligently suffered it to be used, although the ties which held the rails in place were rotten and unsound, and in such condition as to be actually dangerous to the traveler over said road; and while said car was proceeding with the plaintiff's intestate thereon at the point last aforesaid, it was, by reason of such defect in the said track, and the unsoundness thereof, thrown from the track, and said car wrecked, and the said Frank Sweet caught therein and bruised and mangled in a most horrible manner, from the effects of which the said Frank Sweet did languish and live for a period of ten hours after he was bruised and mangled, as aforesaid, before dying, and that, during the said ten hours he so lived, he suffered great bodily pain and mental anguish. That his death aforesaid was caused by the injuries received in the manner as stated aforesaid, and by reason thereof his estate has been damaged in the sum of ten thousand dollars."

The defendant answered and admitted that its train was derailed, and that plaintiff's intestate was injured, but denied all the allegations in the complaint charging it with negligence, and that the intestate suffered pain or mental anguish. It alleged that the deceased was guilty of contributory negligence, and that by reason thereof he lost his life. It further answered by saying that "there was and now is another action pending in the Desha circuit court, at the Watson district of Desha county, Ark., between the same parties and for the same cause of action set forth in the complaint to this action, which said suit is now on appeal to the supreme court of the state of Arkansas; that, at the trial of the said action, proof was introduced by the plaintiff to the jury impaneled to try the said cause of the mental anguish and bodily pain suffered by the plaintiff's intestate on account of the injuries received as herein alleged, and that under said proof a verdict was rendered for the sum of $ 10,000." And pleaded the statute of limitations of one and two years.

The issues of fact in the action were tried by a jury. Evidence was adduced in the trial tending to prove the allegations of the complaint, that the funeral expenses of the deacesed amounted to $ 210 or...

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