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

• Decision Date: 20 April 1914
• Docket Number: 267
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. DRUMRIGHT
• Court: Arkansas Supreme Court

166 S.W. 938

112 Ark. 453

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

No. 267

Supreme Court of Arkansas

April 20, 1914

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

Judgment affirmed.

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

1. The testimony as to the location, etc., of the wash place had no connection with this case at all, and its admission only tended to confuse and mislead the jury. It should have been excluded.

2. The argument of appellee's attorney was not justified by the evidence. There was no proof that appellant had any control over the men, but, on the contrary, that the State retained the right to control their labor, and that they were in charge of wardens selected by the State. This argument was such an abuse of counsel's privilege as should have called for a rebuke from the court.

3. It was a question for the jury whether, in walking down the track, appellee was a trespasser. 38 Cyc. 995. And an instruction was erroneous, which told the jury that the burden was on the railway company to show that it kept a lookout, even though the plaintiff was a trespasser. St Louis, 1. M. & S. Ry. Co. v. Gibson, 107 Ark. 431. Likewise an instruction was erroneous which told the jury that if the trainmen failed to keep a lookout, and their failure to do so was the cause of plaintiff's injury they should find for plaintiff. That instruction ignored the defense of contributory negligence.

The court's fourth instruction erred in telling the jury that if plaintiff's duties required him to cross the tracks he was not a trespasser in walking down the track. There was no necessity or occasion for his walking down the track.

4. An instruction which, in effect, told the jury that if plaintiff, before going upon the track, did stop, look and listen, he was not guilty of contributory negligence, and which nowhere told them that it was his duty to continue to look and listen until he had passed the point of danger, was clearly erroneous. 94 Ark. 524; 78 Ark. 359; 101 Ark. 315.

5. The court should have directed a verdict for the defendant. The testimony shows that the train operatives were keeping a lookout; that the fireman was ringing the bell and that the engineer had sounded the whistle for the junction; and nowhere is there any contradiction of their positive testimony that they did not discover plaintiff until after he was injured. 46 Ark. 388, and authorities cited; 145 U.S. 418; 150 U.S. 245; 62 Ark. 245; 84 Ark. 270; 102 Ark. 160; 31 F. 531; 92 Ia. 182, 54 Am. St. Rep. 542; 3 Labatt, Master and Servant, § 3421, note 2.

W. H. Pemberton, for appellee.

1. The testimony as to the wash place was competent for the purpose of showing that appellant was advised of the condition of affairs at this point, and of the necessity for plaintiff and others to cross the two main lines of the track. This knowledge was sufficient to put appellant upon notice that plaintiff and other occupants of the prison cars were liable to be entering upon or crossing its tracks at any time.

2. The court's direction to the jury not to consider anything but the testimony and the instructions of the court was amply sufficient to remove any harmful effect of the argument of counsel.

3. The question whether appellee was a trespasser or not, was duly submitted to the jury, in instruction 6, given by the court. If instruction 2 placed the burden on appellant to show that it kept a lookout, even though plaintiff was a trespasser, no prejudice resulted to appellant since the instruction also told the jury that the company would not be liable for failure to keep such lookout if the plaintiff was a trespasser. But instruction 2 is the law as approved by this court. 78 Ark. 28; 80 Ark. 535; 83 Ark. 68; 88 Ark. 210.

When the instructions are considered as a whole, it is found the defense of contributory negligence was not "ignored."

4. Appellant misconstrues the seventh instruction in saying that it in effect told the jury that if plaintiff, before going upon the track, did stop, look and listen, he was not guilty of contributory negligence. It also used the words, after look and listen, "and to take such precautions as a person of ordinary prudence would take under the same circumstances to prevent being injured." And a later instruction advised the jury of plaintiff's duty to continue to look and listen. It was a question of fact to be submitted to the jury whether plaintiff was guilty of contributory negligence in failing to look and listen, and to continue so doing until the danger was past. 101 Ark. 322; 99 Ark. 171, and cases cited; 100 Ark. 533, 534; Id. 359, 360.

5. The court did not err in refusing to direct a verdict for the defendant. The engineer and fireman testified to a state of facts which made it a physical impossibility for them not to have seen the plaintiff. 83 Ark. 69. Cases cited by appellant are so dissimilar on the facts from this that they have no application. There is no evidence whatever to contradict plaintiff's reasonable statement that he used due and ordinary care before going on the track, the effect of which testimony showed clearly that he was not guilty of contributory negligence; and certainly he had the right to have the question of his negligence submitted to the jury, under proper instructions. 78 Ark. 361; 48 Ark. 460; 48 Ark. 333; 58 Ark. 125; 61 Ark. 549; 100 Ark. 534; 85 Ark. 531; 99 Ark. 172.

6. Taken in its most favorable light for the appellant, appellee was either an employee of the company or of its contractor. In either event it would owe him the same duties as to safety.

The lookout statute applies to railroad yards as well as other places, and is for the benefit of employees as well as others. 78 Ark. 22; 83 Ark. 68; 80 Ark. 528; 88 Ark. 205.

Where a railroad has reason to anticipate trespassers, a lookout for them must be kept. 197 Mo. 720; 91 S.W. 707; 62 S.W. 261; 79 S.W. 394; 64 S.W. 90; 81 Ark. 191; 8 L.R.A. (N. S.) 1077, note.

Appellant owed the plaintiff this duty none the less because he was not a trespasser.

MCCULLOCH, C. J. SMITH, J., dissents.

OPINION

MCCULLOCH, C. J.

This appeal is from a judgment of the circuit court of Hot Spring County in favor of appellee for damages on account of personal injuries inflicted by one of appellant's trains while being operated in or near the yards in Argenta.

Appellee was a State convict at the time he received his injuries, having been convicted of criminal homicide and sentenced to a term in the State penitentiary, but has been pardoned since the date of his injury. He was sixty-six years of age at the time, and was a carpenter by trade.

The convicts, or, at least, a considerable portion of them, were hired to one Reaves by the State Board of Penitentiary Commissioners, and Reaves, in turn, sublet them to Ball & Peters, who were contractors doing railroad work. Ball & Peters had a contract with appellant to do certain construction work along the track north of Little Rock, and at the time appellee's injury occurred he, with a squad of about 100 of the men, were stationed in camp cars on a sidetrack near Argenta. Ball & Peters were independent contractors, but under the Reaves contract, the State retained the right to control the labor of the convicts, and they were guarded and worked in charge of wardens selected by the State. This bunch or squad of convicts was in charge of a deputy warden, who lived in one of the camp cars, and had his family with him. Appellee was a trusty at the time, his work being to do the ordinary chores around the camp cars, make up the beds and clean the cars where the guards and other free people stayed, and, among other things, to wait on the family of the deputy warden who was in charge. The road was double-tracked along there, the east track being used by northbound trains, and the west track by southbound trains, the general direction of the road being north and south. The camp cars, about fifteen in number, were placed on a sidetrack on the west side and running parallel with the main track. The convicts had been located at that place for some time, and the situation of the cars was necessarily well known to the trainmen who operated trains. There is a conflict in the testimony as to the width of the space between the sidetrack on which the camp cars were situated and the south bound main track, the distance being, according to the varying testimony of witnesses, from a clear space of from eighteen inches to five feet between cars occupying the two tracks. The main track curves a short distance north of the spot where plaintiff was injured, but there is a conflict as to the distance where the curve is situated. The testimony adduced by appellee tended to show that, looking from the point where appellee was injured, the approach of a train from the north could not, on account of the curve, be observed for a distance of more than 300 feet. Appellant's testimony tended to show that a train could be seen a much greater distance.

Appellee was injured by a train which came from the north while he was walking down the track. The entrances to the camp cars were on the east side of the cars, making it necessary for the convicts, when they came out of the cars, to step down on the southbound main track. There was no way to get out of the camp cars except to step out the doors on the east side, and the evidence establishes the fact that it was customary for the convicts to cross the track when necessary to do so, and to walk up and down the track in getting from one car to another. According to the testimony of the warden, when the convicts were brought out of the cars in the morning, they were lined up on the southbound track and marched along the...