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

• Decision Date: 31 March 1913
• Citation: St. Louis, Iron Mountain & Southern Railway, Co. v. Gibson, 155 S.W. 510, 107 Ark. 431 (Ark. 1913)
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY, COMPANY v. GIBSON
• Court: Arkansas Supreme Court

155 S.W. 510

107 Ark. 431

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

Supreme Court of Arkansas

March 31, 1913

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

STATEMENT BY THE COURT.

This is a suit for damages for the wrongful death of O. E. Gibson alleged to have been caused by the negligence of appellant company, in running a train over him and not keeping a constant lookout, the complaint alleging:

"That the servants of the defendant operating the train did not keep a constant lookout, as required by law, and that had they kept such a lookout they could have discovered the deceased's peril in time to have prevented injury to him by the exercise of reasonable care." "That they negligently, wilfully and wrongfully ran over and killed the deceased, when by the exercise of reasonable care, they could have prevented injuring him."

The answer denies all the material allegations of the complaint and alleges that about 5 o'clock on the afternoon of the day of the injury the deceased was lying down drunk, or asleep, on the side of the railroad track south of Hope as its passenger train approached and while the operatives in charge of said train were keeping a lookout, and, on account of the darkness, its servants failed to discover deceased in time to stop the train, but immediately upon seeing him did everything in their power to stop the train, but were unable to do so and pleaded the negligence of deceased in bar of the action.

O. E Gibson was killed by appellant's train on the 27th day of January, 1912, south of Hope, shortly after 5 o'clock. The train was due, under its schedule, at Hope at 4:49, was from forty-five to fifty minutes late, making its time of arrival at Hope about 5:39 and was running about thirty miles an hour. The track was straight for a distance of about three miles south of Hope and the trainmen noticed a dark object on the left-hand side of the track, which the engineer took to be a tie lying down beside the track and a little too close he discovered it when he was about 500 or 600 feet from it kept a close watch from then on, fearing it wasn't in the clear, although he could see it was on the outside of the track entirely and when he got within about 200 feet of it thought it might be a man and began to stop the train. The emergency brakes were at once applied and the whistle blown and bell rung. The train struck the man and the last coach cleared the place where he was struck before it was stopped. The train consisted of an engine and eight cars. The engineer testified it was as good a stop as could be made; that nothing else could have been done to stop the train quicker.

The fireman testified likewise; that after discovering that the object beside the track might be a man, all efforts possible to stop the train were made and the bell was rung and the whistle blown and "the air put in the emergency." That they were 500 or 600 feet from the object when they first discovered it. That he was sitting on his seat in the cab and was within 150 feet from the object when he first concluded it might be a man and rang the bell and hollered to the engineer. The engineer, he believed, also hollered at him and he had put the air over in the emergency. He said the train was making about thirty miles an hour.

Expert locomotive engineers testified relative to the effect of an electric headlight between sundown and dark and that it did not give as good light at that time as after dark; that a man could be seen by such a light in the twilight 500 or 600 feet, standing, and would be more perceptible if on the track than to the side of it; that from 200 to 250 feet the engineer should be able to discern the difference between a crosstie and an animate object the size of a man, his ability to do so depending much upon the particular time between sundown and dark, and the position in which the object was lying. That an ordinary passenger train going into Hope on that grade of track where deceased was injured should be stopped in between 750 and 800 feet, going at the rate of thirty miles per hour. That it would take about three seconds for the brakes to take full effect against the wheels; that the train running forty-four feet a second would go 140 feet before the brakes had the full effect and it could not be stopped in less than 750 or 800 feet. If the train was running eighteen miles an hour the train could be stopped in between 475 and 500 feet, and could not be stopped in 300 feet. The other expert testified likewise and said between sundown and dark the effect of the headlight to render objects discernible beside the track is very poor. Between sundown and dark your light is not much good; there is a shadow goes with these lights. You will see a shadow and think it is something else. Assuming that the engineer is on his engine and there is a man lying with his head about the end or between the ties with his feet extending away from the track, the engineer would be doing mighty well at that time of night, if he was able to discover it was a man a block distant. If he could see that there was an object there for a distance of 450 feet he would be doing mighty well. The engineer would be somewhere close to a block of it before he could discern that the object the size of a man beside the track was a man in the twilight hour with the headlight burning. If he did discover it was a man and put on his emergency brake about three seconds would elapse before the clutch would begin to take hold and then it would depend upon the speed he was making. The train should go about 600 or 700 feet before the stop.

If Mr. Gibson was lying beside the track, with his head up on the ends of the ties or between the ends of the ties near the rail, it would not have been possible to have stopped the train with eight cars before striking him. He could not have stopped the train in time to have prevented striking him after he first discovered the object there. He said if a train was going only eighteen miles an hour it could be stopped in about 500 feet, but that the last test made by him was of a train going twenty miles an hour with a train of six cars, with a grade of one and one-half per cent and a stop was made in 720 feet.

There was testimony to the effect that Gibson had been drinking during the day and several persons saw him sitting on the side of the railroad track; one witness stated that he passed him sitting there, and that he had gone about 1,000 yards down the track when he met the approaching train and stepped off the track to let it pass; that before he did so he looked back and could see Gibson still sitting up and could see the headlight shining on him. That the engineer was looking out of the window towards Hope and he thought at first he was looking at him, but when the engine passed the engineer seemed, to witness, to be looking ahead at the man on the track. This witness said it was dark, but that it was light enough to see.

Testimony was introduced showing the age of deceased, the amount of his contributions to his wife and infant daughter, who was past seventeen years of age, no claim being made for damages for pecuniary loss to the children over age. One or two witnesses stated that no signals were given before this train stopped, but the great preponderance of the testimony shows that signals were given before the train came to a standstill.

The court instructed the jury, giving, among others, over appellant's objections, instructions numbered 1, 3 and 7, as follows:

No. 1. "You are instructed that whenever it is shown by the plaintiff that deceased was killed by the operation of the train the law presumes that the killing was negligent, and the plaintiff is entitled to recover, without showing anything further, and the burden is upon the defendant to show that it was not guilty of any negligence, causing deceased's death."

No. 3. "You are instructed that the defendant can not be held liable for negligence in this case, if the deceased by his own negligence contributed to the injury complained of, unless it was a wilful injury or one resulting from the want of ordinary care on the part of the defendant to avert it after the negligence of the deceased had been discovered, or resulting from a neglect to keep a constant lookout for persons and property on the tracks, but such failure either to keep such constant lookout or to exercise ordinary care to avoid injuring deceased after his peril had been discovered, if you find it was discovered, or find that defendant's servants failed to keep a lookout, rises to the grade of wanton or reckless conduct and renders immaterial the inquiry as to the contributory negligence of the deceased in exposing himself to a danger."

No. 7. "If you find for the plaintiff, your verdict should be for such a sum of money as will be a just and fair compensation with reference to the pecuniary injuries resulting from the death of said O. E. Gibson, to the widow and children of said deceased, and you are further instructed that, in estimating the pecuniary injury, if you believe from the evidence that the widow and children of said Gibson, deceased, have sustained any injury for which the defendant is liable, you have a right to take into consideration the support of the said widow and minor child of the said deceased, and the damages, if any, sustained by the minor child by the loss of the instruction and physical, moral and intellectual training of the minor children by the deceased, and also the age of the said minor child, and also the age of the deceased, his condition of health, his probable expectancy; all these things are proper for you to consider in arriving at the amount of damages."

The jury returned a verdict and from...