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

• Decision Date: 01 February 1915
• Docket Number: 154
• Citation: 173 S.W. 836,116 Ark. 514
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. ELROD
• Court: Arkansas Supreme Court

173 S.W. 836

116 Ark. 514

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

No. 154

Supreme Court of Arkansas

February 1, 1915

Appeal from Pope Circuit Court; Hugh Basham, Judge; affirmed.

STATEMENT BY THE COURT.

One of appellant's locomotives ran over appellee on the night of the 3d of September, 1911, and so crushed his arm that an amputation at the shoulder was necessary. Appellee alleged and proved that he suffered great pain and anguish, as well as loss of earning capacity, and, in the trial, from which this appeal is prosecuted, recovered a judgment for the sum of $ 3,000.00.

It is not contended that the judgment is excessive, nor is it claimed that any error was committed by the court in charging the jury, except that the court erred in giving an instruction numbered 4 at the request of appellee, for reasons which will hereafter be discussed.

Appellant insists the jury did not follow the instructions of the court, as it says the instructions, under the proof practically directed a verdict in its favor, and it is now urged that the case should not have been submitted to the jury at all. The jury might well have found that appellee's injury did not occur in the manner stated by him, but his right to recover does not rest solely upon his own evidence. This injury occurred about 3 o'clock in the morning, after appellee had spent the preceding part of the night in drunken revelry, and he undertook to show that he was struck by the locomotive as he was walking across the tracks at a public crossing. It is now practically conceded by appellee's counsel, however, that his injury did not occur in that manner, but that he was lying in a drunken stupor, with his arm across one of the rails, when the locomotive struck him. The injury occurred just as the locomotive was rounding a very sharp curve, and one of the principal questions of fact in the case was, whether or not the operatives of the train could have seen appellee by keeping a constant lookout in time to have thereafter avoided the injury by the exercise of ordinary care. Three members of the switching crew were riding in front of the engine, and the evidence on the part of the appellant is that these men were keeping a lookout as well as the engineer, but that the curve in the track was too sharp for appellee's presence upon the track to be discovered by them in time to avoid striking him. There was evidence, however, from which the jury might have found that appellee's presence on the track would have been apparent, to one keeping a lookout, for a distance of from 150 to 200 feet, and that the train could have been stopped in a distance of about sixteen feet and was, in fact, stopped in a distance estimated at from fifty to sixty feet.

Instruction numbered 4, given at appellee's request, was as follows:

"You are instructed that if defendant's servants discovered plaintiff's peril in time to have avoided injuring him by the exercise of ordinary care, or if they could have discovered it in time by keeping a constant lookout, then it is immaterial whether the plaintiff was asleep, drunk or sober, and immaterial that he was a trespasser."

It is insisted that this instruction should not have been given because, according to appellee's contention, he was not lying drunk near the rail.

In connection with the other instructions in the case the court read to the jury the lookout statute, approved May 26, 1911 but only a general objection was made to this action of the court.

Mr Winn, one of the attorneys for appellee, in his opening argument to the jury, used the following language:

"Gentlemen of the Jury: This defendant railroad corporation has taken all of the land they wanted in this State. They can go and take your homes from you. They do take your homes; they run over the widows and orphans of this State. They are absolutely without souls."

To the use of this language appellant at the time objected and its objection was overruled, and exceptions saved. At the conclusion of the argument, in which this language was used however, the court stated to the jury that the argument was an improper one and should be disregarded by them.

Other questions are raised in the brief, but we think it unnecessary to discuss them.

Judgment affirmed.

Thomas B. Pryor, for appellant.

1. It was error to refuse a peremptory instruction for defendant. Plaintiff was a trespasser; the lookout law was strictly complied with and as soon as plaintiff's presence was discovered everything possible was done to avert the injury. 40 Ark. Law Rep. 358; 107 Ark. 431; 108 Id. 396; 110 Id. 444; 162 S.W. 51; 166 Id. 568. A jury has no right to arbitrarily disregard the testimony of witnesses. 67 Ark. 516; 89 Id. 121; 66 Id. 441; 89 Id. 578; 78 Id. 237.

2. The remarks of attorney for plaintiff were improper and prejudicial. The error was not cured by the court. 70 Ark. 305; Ib. 179; 61 Id. 130; 63 Id. 174; 30 N.W. 630; 14 S.W. 566.

3. It was error to read to the jury Act No. 284, approved May 26, 1911, the "Lookout" statute. 63 Ark. 477; 107 Id. 431; Const. Ark., art. 7, § 23; Kirby's Dig., § 6196; 71 Ark. 43.

4. Instruction 4 was improper. It was unwarranted under the pleadings. 75 Ark. 468; 59 Id. 169.

Oscar Winn and Mehaffy, Reid & Mehaffy, for appellee.

1. If the lookout statute had been complied with the engine could have been stopped in time to avoid the injury. The question of drunk, asleep, negligence, or trespass, cuts no figure in this case, if the employees violated the statute. The verdict is not based upon conjecture or speculation, but upon competent testimony. 168 S.W. 135.

2. The statements in argument of Oscar Winn were not prejudicial. The jury were properly admonished. When carefully examined, they do not fall within the rule. 70 Ark. 305; 63 Id. 174; 61 Id. 130; 65 Id. 620; 70 Id. 179; 71 Id. 434.

3. No prejudice resulted from the reading of the statute. 63 Ark. 484.

4. There is no error in the court's charge. The verdict is supported by the evidence and is not excessive. The instructions are capable of but one construction. 63 Ark. 474-484.

OPINION

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

It is true that instruction No. 4, given at appellee's request, did not comport with what he said the facts were, but the instruction correctly declared the law, and if the jury found the facts to be as they were there hypothetically stated, then appellee was entitled to a verdict. We think the court properly gave this instruction under the circumstances. The fact that appellee was drunk constituted no defense, if his presence was discovered in time to have avoided injuring him, or if, by keeping a constant lookout, his presence could have been so discovered.

The court gave numerous instructions declaring the law in conformity with the opinion of this court in the case of Russell v. St. Louis S.W. Ry. Co., 113 Ark. 353, 168 S.W. 135.

We think no error was committed in reading the lookout statute to the jury, although the better practice is for the court to interpret any statute, about the interpretation of which there is or may be a difference of opinion. But the facts in this case are unlike those in the case of Kansas City, F S. & M. Ry. Co. v. Becker, 63 Ark. 477, 39 S.W. 358., which last mentioned...