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

• Decision Date: 11 December 1911
• Citation: 142 S.W. 1122,101 Ark. 532
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. HUMBERT
• Court: Arkansas Supreme Court

142 S.W. 1122

101 Ark. 532

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

Supreme Court of Arkansas

December 11, 1911

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause dismissed.

W. E Hemingway, E. B. Kinsworthy, H. S. Powell and James H Stevenson, for appellant.

1. The deceased was a trespasser and entitled to none of the rights of a traveller on the highway or at a crossing. Testimony which related solely to the rights of a traveller on a highway and at a crossing, or rights he might have if a licensee on the tracks, and which had no bearing upon the issue of discovered peril, was misleading to the jury and prejudicial to appellant. 39 Ark. 24, 25, 27, 28; 83 Ark 300, 301, 302; 95 Ark. 190, 192, 193, 194; 63 Ark. 65; 69 Ark. 380; 94 Ark. 524; 90 Ark. 278, 285

It is not sufficient to show that those in charge of the train could have seen the person on the track or could have seen him sooner than they did; but the plaintiff's evidence must show that they did actually see him in time to avoid the injury by the use of ordinary care. 77 Ark 401; 82 Ark. 522, 525; 65 Ark. 429, 436.

2. The deceased being a trespasser on the track of the appellant, it owed him no duty save not to wantonly or wilfully injure him after discovering his presence and peril. The evidence is clear that the engineer did his full duty and exercised the full measure of ordinary and reasonable care under all the circumstances; and it is amply sufficient to absolve the lo kout man from any negligence after discovering the peril of the deceased. But, even if both the engineer and the lookout had been negligent, the concurring fault and negligence of deceased would bar recovery. 93 Ark. 24, 28; 83 Ark. 300; 95 Ark 190, 193, 194.

Manning & Emerson, for appellee.

1. Appellant, in its argument that certain testimony was not admissible because not relevant to the issue of discovered peril raised in the pleadings, ignores the other issues raised by the same pleadings. The evidence might be irrelevant and immaterial as to that issue, and yet be both relevant and material on the other issues, and therefore admissible. 1 Greenleaf, Ev. (15 ed.), § 51; 3 Rice on Ev. § 40 and authorities cited; 31 Cyc. 682; Wharton on Ev. §§ 20, 21; 58 Cal. 163; 78 N.Y. 90; 21 Minn. 442; 76 Mich. 448; 129 Ga. 382; 59 S.E. 94; 51 So. 597; 74 A. (N.H.) 585; 77 A. 537-40; 76 P. 255; 106 P. 629-32; 93 Minn 99; 100 N.W. 653; 16 Cyc. 847-8; 18 Kan. 508; 8 Ore. 330; 58 A. 774; 42 Ark. 542-54; 123 S W. (Tex.) 732

2. Appellant's contention that the court should have directed the jury to return a verdict in its favor because of there being no evidence to support a verdict against it falls to the ground perforce of its concession that, but for the admission of the alleged immaterial evidence, "the verdict might and very probably would have been different." If the evidence was such that reasonable men might reach different conclusions under it, it then became solely a question for the jury, and is sufficient to sustain the verdict. In determining whether the trial court erred in refusing to give a peremptory instruction against appellee, the testimony in his favor will be given its strongest probative force. 95 Ark. 560; 87 Ark. 628; 94 Ark. 478-80, and cases cited. Counsel's contention is that deceased was a trespasser, that he was drunk and asleep upon appellant's track. If he was drunk and asleep upon the track, appellant's employees must have known immediately upon discovering him that he was not aware of his peril, and they could not presume that he would or could protect himself, but it was their duty to use a proper degree of care to avoid injury or killing him. 46 Ark. 513-23, and authorities cited; 36 Ark 376. The evidence is fully sufficient to sustain the finding of the jury that appellant's employees discovered the peril of deceased in time to have avoided killing him by the exercise of ordinary care and the use of appliances which they had at hand 69 Ark. 380-3; 89 Ark. 496, 500; 94 N.E. 206-10; 112 S.W. 739; 91 Ark. 14, 19; 90 Ark. 398-402.

OPINION

MCCULLOCH, C. J.

Plaintiff 's intestate, M. W. Duke, was run over and killed by a switch engine near the north end of the railroad bridge across the Arkansas River at Little Rock about 11 o'clock on the night of January 18, 1908, while he was lying on the track between the rails. He was apparently unconscious of his perilous position, and was either asleep or intoxicated, or both. Witnesses who were with him a short time before the occurrence, and parted from him at a boarding house a short distance away, testify that he was intoxicated, and this testimony is not contradicted. He was next seen when discovered lying on the track a few seconds before the occurrence by E. A. Tucker, the foreman of the switch crew, who was standing on the front foot-board of the engine. No one saw him get on the track.

It is conceded that Duke was guilty of negligence in lying down on the track, but plaintiff, as administrator of his estate recovered damages below on the theory that the engineer discovered his perilous position in time, by the exercise of ordinary care, to have stopped the engine and avoided the killing. On no other theory is there any semblance of a claim that the recovery of damages can be justified. The engine was pulling ten empty passenger coaches and its speed, while crossing the bridge, going north from the Little Rock side, was between four and five miles per hour. There was testimony tending to show that, while running at that speed, the engine could have been stopped in the distance of eight or ten feet after the air was applied and the emergency brake thrown on. This was contradicted by other witnesses, who testified that it would require 30 feet in which to stop such a train under the most favorable conditions, and more if the track was wet. The engineer testified that he did not see the man or any object on the track, but threw on the full emergency brake and stopped the train as quickly as possible when he received the stop-signal from Tucker, who, as before stated, was standing on the foot-board in front of the engine. He testified that he was keeping a lookout ahead down the track until he got in about 50 feet from the man's body, estimating the distance from where he afterwards discovered that the body was lying, and that he then blew the whistle calling for the signal from the puzzle-switch tender; that the steam escaping...