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

• Decision Date: 15 June 1914
• Docket Number: 44
• Citation: 168 S.W. 1129,113 Ark. 417
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GIBSON
• Court: Arkansas Supreme Court

168 S.W. 1129

113 Ark. 417

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

No. 44

Supreme Court of Arkansas

June 15, 1914

Appeal from Hempstead Circuit Court; Jacob M. Carter, Judge affirmed.

STATEMENT BY THE COURT.

Appellee sued appellant to recover damages for the wrongful death of her husband, O. E. Gibson. This is the second appeal in the case, and the opinion on the first appeal is reported in 107 Ark. 431, under the style of St. Louis, I. M. & S. Ry. Co. v Gibson. The facts, as proved by the appellee, are substantially as follows:

O. E Gibson was seen sitting on the cross-ties on appellant's line of railway, a short distance south of Hope, on the afternoon of January 27, 1912. About twenty-five minutes thereafter he was run over and killed by a fast northbound passenger train consisting of an engine and eight cars. The track south of where Gibson was killed was perfectly straight for two miles, and a person standing on the track 1,350 feet from where he was killed could see a man lying on the track at that point. Gibson was killed some time between 5 and 6 o'clock in the afternoon. Some of appellee's witnesses say that it was between sundown and dark, and others say it was nearly dusk. Most of them say that it was light enough for him to have been seen at a distance of 1,350 feet. The electric headlight on the engine was burning, but no bell was ringing or whistle sounded before the train struck decedent. Gibson had been drinking some during the day, but several of appellee's witnesses testified that he was not drunk. One of them stated that he had talked with Gibson about 4:30 o'clock in the afternoon on that day and that he was perfectly sober at that time.

On behalf of the railway company, the engineer and fireman of the train that ran over decedent, testified that they were keeping a lookout; that they first noticed an object on the track about 500 feet distant, but supposed it was a tie thrown down by the track by the section hands while repairing it; that when they got within 150 or 200 feet of the object, they discovered it was a man; that the engineer immediately applied the brakes in emergency and stopped the train as quickly as he could; that the engine was pulling eight cars that day, and that the train ran five or six hundred feet after the emergency brake was applied before it could be stopped; that it ran the length of the train beyond where the man was struck; that each of the eight cars was sixty-two feet long, and that the engine was seventy feet in length; that the train was behind the schedule time, and that it was running at the rate of thirty-eight or forty miles an hour when the emergency brake was applied; that the bell was ringing at the time; that the accident occurred at 5:33 p. m.; that the train was delayed about ten minutes on account of the accident, and that it stopped at the station of Hope three or four or five minutes.

Other evidence adduced by the appellant, by expert witnesses, tended to show that the train could not have been stopped in a shorter distance than that testified to by the engineer and fireman. Evidence was also adduced by appellant tending to show that decedent was very drunk on the night before he was killed, and had been drinking heavily on that day.

The jury returned a verdict in favor of appellee; and to reverse the judgment rendered, appellant prosecutes this appeal. Other evidence will be referred to in the opinion.

Judgment affirmed.

E. B. Kinsworthy, R. E. Wiley and T. D. Crawford, for appellant.

1. The rejected portion of Whitworth's testimony was competent and material as tending to show when the accident occurred. It was based upon a book of original entries kept by him and was admissible as such. 108 Mo. 277; 111 Mo. 205; 160 Ill 101; 72 Mo.App. 534; 2 Enc. of Ev. 626; 63 Ark. 562; 130 Mich. 449; 158 Mass. 450, 33 N.E. 583; 103 Ark. 153; 27 Wash. 169, 56 L.R.A. 772; 122 Ky. 269, 3 L.R.A. (N.S.) 1194; 138 N.C. 42, 107 Am. St. 500; 36 L.R.A. 693, 100 Ia. 204; 24 Okla. 691; 68 W.Va. 506; 7 Tex. Civ. App. 169; 42 Id. 85; 191 F. 720; 169 Ala. 389; 203 F. 407; 108 Minn. 470; 138 N.C. 42; 74 Mich. 713; 39 O. St. 327.

2. According to the holding of this court on former appeal, a prima facie case is not made, and the burden is not shifted to the railway company to show the keeping of a lookout, until proof has been introduced of the injury to a person by the operation of a train under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout had been kept. 107 Ark. 431, citing 151 S.W. 246.

Steve Carrigan, Jr., and Mehaffy, Reid & Mehaffy, for appellee.

1. The rejected testimony of Whitworth's was not only not prejudicial, but proper.

It was wholly immaterial as tending to prove the speed of the train, because, while a calculation might be made from the time the train cleared the blocks, and the time the accident occurred, which would show the average speed of the train, it would show nothing further, it would not show the speed of the train, whether it was going fast or slow, at the time of the accident. If the evidence was immaterial or incompetent, its exclusion was not only harmless, but proper.

Before such testimony would be admissible, there must be either a statute authorizing its introduction, or it must be shown that it was a contemporaneous act and a part of the res gestae. There is no statute authorizing it, and there is not only no showing that the act was contemporaneous and a part of the res gestae, but the facts in the case negative that idea.

Finally, it is a well known rule that parties who make entries, telegraph them in or communicate them in any way, are the proper witnesses of those facts, and must be called to testify in relation thereto. This case was tried in the county in which Hope is situated. Appellant's operator at that place should have been called to testify to these facts.

2. Instruction 4 is correct. However, if the clause therein complained of was open to objection, it should have been pointed out by specific, not a general, objection. 81 Ark. 187; 66 Ark. 264; 70 Ark. 563; 74 Ark. 355.

Where the whole charge to the jury is more favorable to the complaining party than he is entitled to, and when the judgment is right upon the testimony, it will not be reversed for the giving of an erroneous instruction. 89 Ark. 154; 92 Ark. 392; Id. 6; 99 Ark. 226; 103 Ark. 352; 98 Ark. 259; 101 Ark. 34; 93 Ark. 457; Id. 589; 90 Ark. 524.

OPINION

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

The principal question raised by the appeal is whether the court erred in rejecting certain testimony of one Whitworth, who was appellant's station agent and telegraph operator at Fulton on January 27, 1912, the day Gibson was killed.

The railroad was operated by what was called the "block system." Whitworth testified that he kept a record of the movements of the trains on the block south of Fulton and the one north of it; that the block south of Fulton was from Clear Lake Junction to Fulton, and that the block north of Fulton was from Fulton to Hope; that his records show that the train which killed decedent entered the block south of Fulton at 5:03 P. M. on January 27, 1912; that it passed Fulton at 5:17 P. M.; that it cleared the block at Hope at 5:50 P. M., and that this information was given him by the operator at Hope; that when a train passed Fulton going northward, no other train would be permitted to enter that block until after it had been reported to him that the first train had cleared the block; that these records were kept by him to show the movements of the train in order that a train might not enter one block until the train ahead of it had passed out of that block.

Counsel for appellee objected to the testimony of this witness to the effect that the train cleared the block at Hope at 5:50 P. M., and the court sustained the objection of counsel thereto. Counsel for appellant contend that the testimony was competent and material because it tended to show when the accident occurred. Other testimony introduced by appellant tended to show that Hope was thirteen and one-half miles north of Fulton, and that the train ran from Fulton to Hope at the rate of about thirty-eight or forty miles an hour.

To sustain their contention, counsel for appellant rely on the cases of Donovan v. Boston & Maine Rd. Co., 158 Mass. 450, 33 N.E. 583, and Louisville & Nashville Ry. Co. v. Daniel, 122 Ky. 256, 3 L.R.A. (N.S.) 1194, 91 S.W. 691, and other cases of like character.

In the first mentioned case, plaintiff sued the railroad company for injuries received at a crossing, and his evidence was that he was injured near the station at a designated time by an incoming train, and that his view of the train was obstructed by another train which was delivering passengers at the station. To show that no train was delivering passengers there at that time, defendant introduced in evidence the entries on a telegraphic train report sheet kept in its train dispatcher's office at that station, showing the time all trains passed the several stations en-route, and the court held that the evidence was competent. The train dispatcher made the record from reports sent him by the operators at the various stations along the line of railroad and his testimony was objected to on the ground that the testimony of the operators who sent in the reports would be the best evidence. The court said that every interest of the railway company demanded that the entries, when made, should be true, and that no reason could be conceived why the defendant should procure or permit a false or incorrect entry of the movement of its trains; that there was no reason why the operators who...