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

• Decision Date: 07 November 1896
• Citation: 37 S.W. 719,63 Ark. 177
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DENTY
• Court: Arkansas Supreme Court

37 S.W. 719

63 Ark. 177

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

Supreme Court of Arkansas

November 7, 1896

Appeal from Hot Springs Circuit Court, ALEXANDER M. DUFFIE, Judge.

STATEMENT BY THE COURT.

Imogene Denty, an infant four years of age, was struck and injured by a train upon appellant's railway. This action was brought to recover damages for her injury. The accident occurred at a station called Donaldson, an unincorporated village, having three stores and a planing mill, and where several families lived. The little girl, Imogene, with her grandmother, Mrs Riley, were walking east towards the railway track, intending to pass the same at a public crossing in said village. A passenger train,--the "cannon ball,"--was at the same time approaching from the south, and about to pass the station without stopping. The train gave a long whistle for the station and four short blasts for the crossing.

There was conflict in the testimony as to whether the bell was rung or not. Mrs. Riley had a sunbonnet on her head, and she did not at once see or hear the train. She held Imogene by the hand, and walked on until she came to the side track, about ten feet from the main track upon which the train was approaching. She then noticed the train, and stopped standing upon or near the side track, far enough away from the main track to be out of danger from the train. At this time Imogene suddenly broke loose from her, and attempted to run across the track in front of the train. She had got nearly across the track when she was struck by the engine and thrown some distance forward, and off the track to the right of the train. She subsequently recovered from her injuries. The other facts sufficiently appear in the opinion. There was a verdict for plaintiff, and damages assessed at one thousand dollars.

Judgment reversed and cause remanded for new trial.

J. E. Williams and Dodge & Johnson for appellant.

1. The proof in this case makes a case of unavoidable accident. The clear weight of the evidence is that the statutory signals were all given. No physical power on earth could have prevented this accident. The company was in no wise negligent, and hence was not liable. 19 L. R. A. 567; 88 Pa.St. 520; 32 Am. Rep. 472; 11 Wright, 300.

2. The view that the tender years of the child may protect it from the ordinary rules as to contributory negligence will not warrant the court, and did not warrant the jury, in entertaining the presumption of negligence against the defendant. If there be no negligence, the incapacity of the child creates no liability. 65 Pa.St. 269; 3 Am. Rep. 628-634; 95 Pa.St. 398; Patterson, R'y. Law, 72, sec. 75; 14 R. I. 314; 51 Am. Rep. 386; 72 Mo. 62; 4 A. & E. R. Cases, 589.

3. The rate of speed did not contribute to the injury, but was no act of negligence. 19 L. R. A. 567; 34 N.Y.S. 279; 61 N.W. 514; 38 P. 257; 37 N.E. 663; 22 S.W. 939; 44 F. 574; 32 Ill.App. 365. The crossing at Donaldson was a mere country railroad crossing.

4. The court erred in granting the second instruction for plaintiff. It was thoroughly abstract and completely out of place to submit to the jury, in view of the circumstances of this case, that any failure to ring the bell or sound the whistle, and keep it sounding for eighty rods, might be the cause of this accident. The same is true of the third instruction. While, ordinarily, contributory negligence cannot be imputed to a child of tender years, yet the child was in the custody of an adult, capable of taking care of her, and if she permitted her to escape from her, and thus bring injury upon herself, the doctrine of imputed negligence attaches to the child. 52 Cal. 602; 29 Minn. 336; 9 Allen, 401; 142 Mass. 301; 152 id. 294; 46 Ind. 25; 62 Me. 468; 60 N.Y. 326; 36 Hun, 508; 21 Wend. 615; 94 Mo. 600; 28 Kas. 541; 39 Md. 459; 62 Wis. 272.

5. The court erred in refusing the prayers asked by defendant, and modifying those given.

6. On the instructions given the verdict should have been for the defendant.

7. On the whole, the court might well have taken the case from the jury, as being one that warranted no inference of negligence. 55 F. 364; 54 id. 301.

W. E. Atkinson, for appellee.

1. The evidence in this case fully sustains the verdict. There is ample proof of negligence in failing to keep a lookout, and this neglect to perform their duty caused the injury. This court declines to interfere with a verdict when there is evidence to support it. 49 Ark. 369; 47 id. 196.

2. The question as to whether the rule that negligence cannot be imputed to plaintiff will not of itself justify a presumption of negligence, does not arise in this case. There is positive evidence of gross negligence in this case, and does not require presumption of the fact.

3. The rate of speed, the want of signals, and the failure to keep a lookout, make a case of recklessness which warranted a verdict. 46 Ark. 45; Sand. & H. Dig., sec. 6207.

4. The engineer's testimony shows a failure to comply with the statute, and the jury evidently believed, and the evidence justifies them, that if a proper watch had been kept, the injury would not have happened.

5. The exceptions to the instructions are in gross to groups. Such exceptions are not good. 38 Ark. 539; 54 id. 19; 39 id. 337. The third instruction is from 36 Ark. 45.

6. A. parent's negligence will not be imputed to an infant.59 Ark. 186.

7. The modification of defendant's third prayer was right. As prepared, it was not the law, and would have been misleading.

8. As to rate of speed, etc., see 4 Am. & Eng. Enc. Law, p. 932.

9. The suggestion of counsel to take the case from the jury is not well taken. They seem to have overruled and ignored the law, the evidence, and the force and conclusiveness of the verdict, and merely ask this court to set aside the verdict on the weight of evidence.

OPINION

RIDDICK, J., (after stating the facts.)

In this action damages are sought for an injury to Imogene Denty, a child, four years of age. She was struck by a train while attempting to cross the track of appellant's railway at a public crossing in a small village or hamlet called "Donaldson." A consideration of the evidence convinces us that the case turns on the question whether the employees in charge of the train could have avoided the injury by keeping a proper lookout, and also whether that question was properly presented to the jury. It is true there is conflict in the evidence as to whether the signals for the crossing, where the injury occurred, were given by the trainmen as required by the statute, and the presiding judge instructed the jury that they should find for the plaintiff if they believed that the injury was occasioned by the failure to give such signals. But it seems plain that the failure to give such signals, if proved, had no causal connection with the injury complained of. Mrs. Riley, the grandmother of Imogene, a lady sixty-four years of age, with whom Imogene was walking at the time, saw the train before she had got to the main track of the railway upon which the train was approaching. She stopped with Imogene on the side track, and out of danger from the train. There is nothing in the evidence to justify a finding that, had she heard the signals, she would have stopped before she did, or that she would have occupied a safer position while the train was passing. The failure to give the signals did not cause her to come within dangerous proximity to the train, nor was the injury caused by the position in which she and Imogene stood. It was occasioned by the fact that Imogene suddenly broke away from her grandmother and attempted to cross the track. With this act the failure to ring the bell had no connection, for Imogene was too young to understand the meaning of such signals had they been given. We therefore think it was improper to instruct the jury that they should find for the plaintiff if they believed that the injury Was occasioned by the failure to give the statutory signals required for crossings. There was no evidence upon which to base such an instruction, and it was likely to mislead the jury. Railway Co. v. Roberts, 56 Ark. 387.

The instructions also permitted the jury to decide whether the speed of the train was unreasonable or not. But we think that it was not negligence for the railway company to run its regular passenger train past a way station at the rate of thirty miles an hour, when the track near the station is straight, so the train could be seen some distance away, and the train is run on schedule time.

It is necessary for public convenience that passenger trains should make fast time. The people at the station had reason to expect the approach of the train, for it was running on its regular schedule time, and at its usual speed. The track was straight, and the train could be seen some distance away. There was, in our opinion, nothing to justify a finding that such speed was unreasonable, and we think it was improper to submit that question to the jury for determination. Tobias v. Michigan Central Railroad Co., 103 Mich. 330, 61 N.W. 514.

From the instructions given, we do not know that the verdict of the jury was not based on a finding that the speed of the train was unreasonable, or on a finding that the failure to give the statutory signals for the crossing was...